Fok Lai Ying v Governor In Council And Others

IN THE COURT OF APPEAL

1996, No. 200
(Civil)

- Headnote -

Judicial review of Governor's decision under s3 of the Crown Lands Resumption Ordinance Cap 124 - Whether the statutory scheme for resumption of land for public purposes admitted of an implication that landowners be consulted and objections heard before the order was made - Bill of Rights - Whether the statutory scheme for resumption of land, and in particular s3 of the Crown Lands Resumption Ordinance, was inconsistent with Article 14 of the Bill of Rights in so far as the land to be resumed was used as the landowner's home.

Held (Court of Appeal):

(i) Re an application by K.O.Y. Investment Co. Ltd. [1983] HKLR 38 was correctly decided and should be followed.

(ii) The common law presumption that administrative powers will be applied with fairness is not an abstract concept; it depends upon the context of the statute creating the decision-making power. Fairness means fairness to all concerned. The principle cannot be applied in favour of one individual at the expense of the community and contrary to the statutory scheme.

(iii) Any implication of law should not only be fair but also be practical in operation and easy to comprehend.

(iv) In the context of the Crown Lands Resumption Ordinance, the Governor was bound to consult the Executive Council before ordering resumption, but not the landowners.

(v) The statutory scheme under the Ordinance for land resumptions was not inconsistent with the Bill of Rights.

IN THE COURT OF APPEAL

1996, No. 200
(Civil)

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J U D G M E N T

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Litton, V.-P. (giving the judgment of the Court):

Introduction

1. The respondent to this appeal is Madam Fok Lai Ying, the owner of an agricultural lot in the New Territories, namely Lot No. 853 RP in Demarcation District No. 194, Shatin. A three-storeyed village-styled house is erected on one extremity of the lot (a building licence having been granted for this purpose in 1982), leaving the rest of the lot, nearest to a public road, as an open paved area. Madam Fok and her family have been living in the property since the middle of last year. Before then, and for more than a decade, the property has been used as an old people's home.

2. On 6 December 1995 a resumption notice was published in the Gazette stating that a portion of Lot No. 853 RP - in effect, the open paved area of the property - has been ordered by the Governor to be resumed for a public purpose, together with many other agricultural lots in the same area.

3. Madam Fok is aggrieved by this decision.

4. On 19 March 1996 she took out an application in the High Court for leave to issue proceedings for judicial review of that decision. Leave having been granted, the matter went before Cheung J in September 1996. By his judgment dated 26 September 1996 the judge granted Madam Fok relief, declaring that the Governor's order was null and void, on the ground that the requirements of procedural fairness in the decision-making process had not been observed.

5. Madam Fok's portion of land, measuring about 2,100 square feet, was one of many agricultural lots included in a resumption scheme for village expansion in Shatin New Town Area No. 35: An area covering about 176 hectares which had been identified for village-type development in the Shatin Outline Zoning Plan approved by the Governor in Council back in July 1988.

6. The resumption notice, given under s4(1) of the Crown Lands Resumption Ordinance, Cap 124, is in standard form, addressed to the owner and every person interested in or having any right or easement in relation to the lots covered by the notice. It refers to a plan deposited in the District Lands Office Shatin which was available for inspection. It states:

"TAKE NOTICE THAT the Governor in Council having decided that the above mentioned lots and portions of lots are required for a public purpose, the Governor has ordered that the above mentioned lots and portions of lots shall be resumed and revert to the Crown on the expiration of THREE MONTHS from the date of the affixing of this Notice to the said land."

7. It is not suggested by Madam Fok that she had in any way been discriminated against, nor that the procedures adopted in relation to her case, leading to the order for resumption, were any different from those in relation to the many other owners of agricultural lots comprised in the same resumption notice. What is complained of is systemic unfairness which rendered the entire decision-making process leading to the Governor's order fatally flawed. In giving judgment in Madam Fok's favour, the judge said this (p.13-J judgment):

"In my view Madam Fok ought to be notified of the intended resumption and she ought to be given an opportunity to make representations to the Executive Council before the resumption. This has not [been] done, the requirement of fairness has not been observed and in so doing the resumption, in so far as it affects Madam Fok, ought to be quashed."

8. Although the judge confined the declaratory relief to Madam Fok's case, it is inevitable that if his judgment be correct it affects every other owner of land referred to in the notice of 6 December 1995, and probably most resumptions of agricultural land which have ever taken place in Hong Kong under the provisions of the Crown Lands Resumption Ordinance. If the law, properly applied, compels this result, so be it. But the consequences are so serious for the community that this calls for the most anxious scrutiny of the point on our part.

Village expansion scheme

9. All the lots covered by the resumption notice fall within Area 35 in the Shatin Outline Zoning Plan. The plan was approved by the Governor in Council on 5 July 1988 under s9(1)(a) of the Town Planning Ordinance and, of course, before it was approved the proposals in the draft plan went through the public consultation process laid down in ss 5 & 6 of the Town Planning Ordinance. To implement the scheme for "village-type development" referred to in the Outline Zoning Plan, the Planning Department had drawn up a number of layout plans indicating things like roads, pavements, car-parking spaces and the positions of units of housing. In the ordinary course of events, the layout plans were modified from time to time. In the final version - layout plan No. L/ST35/3 - it showed a development for 126 village-type house sites, with communal parking areas and access to the residential units by foot. To accommodate the scheme, the greater part of Lot No. 853 RP - used since about the middle of last year by Madam Fok and her family as an open paved area, partly for carparking - had to be resumed. Obviously, with the resumption having been declared unlawful by the judge, the village expansion scheme itself cannot be implemented.

The statutory frame-work

10. The Crown Lands Resumption Ordinance has been in the statute book since 1900. Section 3 states:

"3. Resumption of land for public purpose

Whenever the Governor in Council decides that the resumption of any land is required for a public purpose, the Governor may order the resumption thereof under this Ordinance."

11. The Ordinance makes provisions for compensation for land resumed. Section 10(1) empowers the Lands Tribunal to determine the amount of compensation payable by the Government on the basis of the loss or damage suffered by the claimant due to the resumption.

12. Section 4 of the Ordinance makes provisions for the giving of notices. Where relevant, it states:

"4. Notices

(1) Where resumption is ordered a notice that the land is required for a public purpose and will be resumed shall be published in the Gazette in English and Chinese.

(2) ....

(3) The notice affixed to the land shall state the date on which it has been so affixed. It shall also state that the land will be resumed on the expiration of one month from such date, unless the Governor shall have authorized the giving of a longer period of notice, in which case the longer period shall be stated."

13. Section 19 provides:

"19. Effect as evidence of notice of resumption

In any notice to resume any land, it shall be sufficient to state that the resumption of such land is required for a public purpose, without stating the particular purpose for which the land is required; and a notice containing such statement shall be conclusive evidence that the resumption is for a public purpose."

14. "Resumption for a public purpose" is widely defined in the Ordinance; it includes:

"(a) resumption of insanitary property for the purpose of securing the erection of improved dwellings or buildings thereon or the sanitary improvement of such property; and

(b) resumption of any land upon which any building is erected which, by reason of its proximity to or contact with any other buildings, seriously interferes with ventilation or otherwise makes or conduces to make such other buildings to be in a condition unfit for human habitation or dangerous or injurious to health; and

(c) resumption for any purpose connected with the naval, military or air forces of the Crown, including the volunteer forces in the Colony; and

(d) resumption for any purpose of whatsoever description whether ejusdem generis with any of the above purposes or not, which...