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CACV 184/2015
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 184 OF 2015
(ON APPEAL FROM HCAL NO 49 OF 2014)
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BETWEEN
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DESIGNING HONG KONG LIMITED |
Applicant |
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and
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THE TOWN PLANNING BOARD |
Respondent |
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SECRETARY FOR JUSTICE |
Intervener |
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| Before : Hon Cheung CJHC, Hon Lam VP, and Hon Poon JA in Court |
| Dates of Hearing : 7 June, 29 & 30 November and 1 December 2016 |
| Date of Judgment : 16 February 2017 |
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J U D G M E N T
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The Court :
1. This is an appeal against the order of Au J dated 30 April 2015 refusing the applicant’s application for a protective costs order (“PCO”). It raises important questions concerning the court’s jurisprudence and practice regarding PCO applications in the Hong Kong context. Since such questions are raised before this Court for the first time, we will take the opportunity to lay down general guidance, insofar as it is desirable, for future PCO applications.
A. Background
A1. The applicant
2. The applicant is a Hong Kong non‑profit company limited by guarantee. When it took out the PCO application below, its two directors were Mr Markus Shaw and Mr Peter HY Wong. Its Chief Executive Officer was Mr Johannes Zimmerman. That remains the position to date.
3. The applicant was incorporated in 2007 in response to the plans announced by the Government for the Tamar Site and the Central Wanchai Waterfront reclamation. Its avowed aim is to increase public awareness and to improve Hong Kong’s collective ability to plan and deliver a sustainable and “beautiful” city. It advocates the adoption of sustainability, quality of life and good design as core values in planning and development. Pursuant to its avowed aim, the applicant is engaged in a number of on‑going projects concerning the planning development of various sites and areas over Hong Kong.
A2. HCAL 49/2014
4. The applicant applied for leave to apply for judicial review against the decision (“the Decision”) of the respondent, the Town Planning Board (“the Board”) not to amend the Amended Draft Outline Zoning Plan 2/H24/4 (“ADOZP”) of the Central District.
5. In issue under the ADOZP is a 150‑metre strip of land along the north shore of the Hong Kong Island (“the Site”) which is marked for the planned Central Military Dock. The Site is situated along Victoria Harbour within the new Central Harbourfront Promenade.
6. In the ADOZP, the Site is re-zoned from “Open Space” to “Other Specified Uses” annotated “Military Use (1)” (“OU(MU1)”). The applicant together with some other representators objected to the proposed re‑zoning. They complained, among other things, that the re‑zoning would interfere with and restrict Hong Kong residents’ right to enjoy the Site to walk along the Central Harbourfront uninterrupted (as they would be able to do so under the original “Open Space” zoning). They asked, unsuccessfully, the Board to amend the ADOZP by zoning the Site back to “Open Space” from the proposed “OU(MU1)”.
7. In May 2014, the applicant applied for leave to judicially review the Board’s refusal to amend the ADOZP on the following grounds :
“ (1) the Board erred in law in disregarding its own statutory duty under section 3(1) of the Town Planning Ordinance (Cap 131) (“the TPO”) in upholding the ADOZP which is contrary to its own declared planning intention;
(2) the Board’s decision is irrational in the public law sense;
(3) the Board failed to take into account relevant matters such as its own declared policy to protect the Harbourfront, ensure public access thereto and maintain visual access to the harbour, the Planning department’s own report made in 2011 prescribing public “Open Space” land use for the Site, the views and recommendations of the Harbourfront Commission and the Administration’s public commitment to effectively keep the Site open for public use;
(4) the Board mistook or ignored an established and relevant fact that if the Site was to be closed for military use, there would not be a continuous pedestrian connection along the waterfront;
(5) the Board misapplied the public law principle of “consistency” by saying that the proposed zoning of the Site was consistent with the existing military exclusive “Military Use” zoning of the PLA headquarters sited nearby in Admiralty;
(6) the Board failed to give effect to the applicant’s legitimate expectation that it would take into account the relevant matters as identified; and
(7) the Board abdicated its duty under section 3(1) of the TPO in not to amend the ADOZP so as to impose any development restriction on the Site other than height restriction.”
8. The Judge granted the applicant leave to apply for judicial review in July 2014.
A3. PCO application
9. At the same time when it applied for leave for judicial review, the applicant asked for a PCO in these terms :
“ (1) Protecting the applicant from all costs of the respondent in the interlocutory applications and the substantive proceedings herein.
(2) Alternatively limiting the costs that may be awarded to the respondent to HK$10,000 and limiting the costs that may be awarded to the applicant to the reasonable costs of a solicitor and junior counsel or such sum as the court may think fit.”
B. Au J’s decision on the PCO application
10. In a careful and detailed judgment handed down on 30 April 2015, the learned Judge first set out at [13] – [16] the three board propositions that the parties agreed to be applicable to a PCO application.
11. First, the court has jurisdiction to make a PCO.
12. Second, the general principles laid down by the English Court of Appeal in R (Corner House Research) v Secretary of State for Trade and Industry [2005] 1 WLR 2600 at [74] in relation to the factors that the court should take into account in deciding whether to make a PCO are equally applicable in Hong Kong. Those factors are :
(1) A PCO may be made at any stage of the proceedings, on such conditions as the court thinks fit, provided that the court is satisfied that :
(a) the issues raised are of general public importance;
(b) the public interest requires that those issues should be resolved;
(c) the applicant has no private interest in the outcome of the case;
(d) having regard to the financial resources of the applicant and the respondent and to the amount of costs that are likely to be involved, it is fair and just to make the order; and
(e) if the order is not made, the applicant will probably discontinue the proceedings and will be acting reasonably in so doing.
(2) If those acting for the applicant are doing pro bono this will be likely to enhance the merits of the application for a PCO.
(3) It is for the court, in its discretion, to decide whether it is fair and just to make the order in light of the considerations set out above.
13. Third, the twin criteria of (1)(a) and (b) above, which are commonly referred to as the “public interest litigation” factors, are the overarching requirements that an applicant must meet before the court would consider whether to grant a PCO after taking into consideration the other relevant factors.
14. The Judge then discussed at length the parties’ submissions and the authorities on, among other things, the concept of public interest litigation and the proposition, with which he disagreed, that even if an applicant is able to meet the principles set out in Corner House, there is still an additional requirement of “exceptionality”.
15. The Judge then applied the Corner House principles to the facts before him.
16. He accepted that the issues raised in the judicial review are of general public importance and it is in the public interest to have them resolved: [54]-[55]. He also agreed that the applicant has no private gain or interest from the outcome of the judicial review : [56].
17. Turning to the financial resources of the applicant and the respondent, and to the amount of costs that are likely to be involved and the question if it is fair and just to make the order, the Judge set out the applicant’s case derived from Mr Zimmerman’s affirmations thus :
“ (1) [The applicant’s] current bank account balance as at 30 June 2014 was only $170,094.74. The applicant was expected to have a negative net income that would result in it exhausting its cash by 31 December 2014. It does not carry on any profit‑making business and has no assets of any real value against which it might be able to obtain funds by way of loan.
(2) The applicant’s directors have already dug into their personal resources to fund its activities and Mr Zimmerman “do not believe they would be willing or able to fund this action further”. Further, Mr Zimmerman had reported the status of the case to the Board of Directors and asked for their personal and financial support for the applicant’s costs. They had also been informed of the applicant’s exposure to costs of the respondent should it lose the judicial review. The other directors have told him that they were not in a position to provide additional funds to the applicant to pursue this case or expose themselves to an open commitment to the Government’s costs.
(3) It is difficult to raise money from outside sources, whether corporate bodies or the general public at large, as there are many environmental and civic causes which are continuously calling upon them for support. The applicant had at the commencement of the judicial review raised sponsorship of HK$50,000 through other concern groups, and Mr Zimmerman does not “believe” that the applicant or he himself would be able to raise more than this amount to pay legal costs and the applicant’s own legal costs for this project.
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