|
CACV 40/2017
[2018] HKCA 330
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 40 OF 2017
(ON APPEAL FROM HCAL NO 5 OF 2017)
__________________________
| BETWEEN |
|
|
| WONG HO TONG (黃好堂) |
Applicant |
| and |
| DIRECTOR OF LANDS |
Putative Respondent |
__________________________
| Before : Hon Lam VP, Cheung and Kwan JJA in Court |
| Dates of Hearing: 24 August 2017 and 30 May 2018 |
| Date of Judgment: 7 June 2018 |
______________________
JUDGMENT
_______________________
Hon Lam VP (giving the Judgment of the Court):
1. This is an appeal against the decision of Au J of 3 February 2017 refusing to grant leave to apply for judicial review concerning the decisions of the Director of Lands in respect of certain structures at the government land near Lot No 79 in DD 124 San Sang Tsuen, Yuen Long.
2. Previously, on the land in question, certain structures were tolerated under squatter control survey numbers SST/1304, SST/1305, SST/1306, SST/1307, SST/1308, SST/1309, SST/1310, SST/1311, SST 1312, SST/1315, SST/X/217 and SST/X/218. Also there were two government land licences granted in respect of two plots of land, GLL Y07023 and GLL Y11038.
3. After receiving some complaints, the Lands Department undertook several inspections in 2015 on the land and found that the original surveyed structures had ceased to exist and substantial construction works were carried out thereat.
4. On 21 July 2015, the District Lands Officer notified the licensees of GLL Y07023 and GLL Y11038 by letters that the GLLs were revoked on the ground that there had been unauthorized addition and change of land usage.
5. On 7 August 2015, the Squatter Control Office notified the occupant of the structures of their findings and that they intended to cancel the registration of SST/1304, SST/1305, SST/1306, SST/1307, SST/1308, SST/1309, SST/1310, SST/1311, SST/1312, SST/1315, SST/X/217 and SST/X/218 [“the SSTs”].
6. On 22 August 2015, the applicant’s son wrote to the Squatter Control Office making representations that the original structures were damaged and they only carried out repair works. He asked the Office not to cancel the registrations.
7. There were meetings on 2 and 16 September 2015 by the Squatter Control Office with the applicant and her son at which they were informed about the findings on inspection.
8. Further representation was made by the son on 17 September 2015 asking for retrospective permission to repair the structures.
9. The Squatter Control Office did not accept the allegation that the works were mere repair works. Based on their observations on-site during the inspection, they concluded that the original structures had ceased to exist and in accordance with the published policy of the Office, the registrations should be cancelled.
10. The Squatter Control Office notified the occupant of the decision to cancel the registrations on the ground that the structures had ceased to exist by a letter of 25 January 2016. At the same time, in respect of another structure at SST/1313 which was not demolished, the Office permitted rectification.
11. After the cancellation, the applicant instructed a surveyor, Goldrich Planners & Surveyors Limited [“Goldrich”] to write to the Squatter Control Office on 15 April 2016 claiming that the structures had not been demolished.
12. The Squatter Control Office refuted that by a letter of 29 April 2016.
13. On the same date, the Lands Department issued a notice pursuant to section 6(1) of the Land (Miscellaneous Provisions) Ordinance Cap 28 requiring unlawful occupation of the land in question be ceased.
14. Goldrich had a meeting at the Squatter Control Office on 3 May 2016. At that meeting, the photographs taken by the Office at the inspection were shown to the surveyor and the applicant’s representatives.
15. After that, there was further correspondence between the applicant and the Office. The applicant reiterated that the original structures had not ceased to exist whilst the Office refuted the same.
16. On 9 August 2016, the Lands Department carried out a clearance operation on the land. The operation was disrupted by the son of the applicant and several men. In the end, the land was repossessed and fenced off.
17. The applicant through her solicitors Cheung & Liu wrote to the District Lands Office on 30 July 2016 alleging that an officer of the Lands Department had made a representation at a meeting in September 2015 that the applicant could restore the structures to the dimensions according to the previous records. Such allegation was refuted by the Office in a letter of 5 October 2016.
18. On 4 January 2017, the applicant lodged a Form 86 in person in HCAL 5 of 2017 seeking leave to apply for judicial review in respect of the decision of the Director of Lands of 5 October 2016. The Form 86 did not set out any grounds.
19. The application was supported by her affirmation of 4 January 2017 in which the grounds were stated to be the following,
“ (1) 處方之決定不合邏輯。
(2) 處方之決定沒有充分考慮當時情況。
(3) 處方沒有充分考慮行使酌情權。
(4) 處方之決定不相稱地侵犯本人的住宅及其他房屋。”
20. She also attached to the affirmation some correspondence between her representatives and the Lands Department in 2016.
21. On 3 February 2017, Au J gave his decision after considering the application on the papers. The learned judge refused to grant extension of time to apply for judicial review and dismissed the application for leave. His reasons, as set out in the CALL-1 form, were as follows,
“ 由於申請人原有的相關寮屋登記及容忍許可，已在2016年1月被撤銷，而地政總署亦已拒絕其復修要求，故此，申請人已是非法佔用官地。地政總署亦已在2016年4月29日發出通知勒令申請人停止非法佔用官地。其後，地政總署亦已在2016年8月9日執行清場行動。
2. 地政總署日期為2016年10月5日之信件只是重複說明上述事情及要求申請人會面就有關刑事結果作出答辯。
3. 申請人已嚴重逾期就著上述撤銷寮屋登記及容忍許可的決定提出司法覆核。法庭亦看不到理由給予申請人准許逾期申請，尤其是申請人之前是有律師代表。單基於此逾期提出申請理由，法庭便須拒絕批出許可。
4. 無論如何，申請人亦未能在本申請中提供任何在公法下認可不合理及有真實勝數的理據，指出地政總署上述的決定有何不合法或極度不合理性(Wednesbury unreasonable)，故此法庭基於此理由也會拒絕批出許可。”
22. On 17 February 2017, the applicant acting in person issued a Notice of Appeal in respect of the decision of Au J.
23. On 23 March 2017, solicitors for the applicant came on record in this appeal. They also issued a summons seeking to substantially amend the Notice of Appeal. They also sought to revise the Form 86. A draft revised Form 86 was produced as exhibit WHT-1 in the second affirmation of the applicant of 24 April 2017.
24. The appeal first came on for hearing on 24 August 2017. The applicant was represented by counsel. After hearing Ms Ng (appearing for the applicant together with Mr Chow), the Court rejected the submission that the application was brought by the applicant within time. We ruled that the applicant needed to seek an extension of time and the Director of Lands, as putative respondent, was entitled to be heard on that application.
25. We gave directions for the joinder of the Director as a party to the appeal. We were also concerned that the applicant had not placed before us all relevant evidence.
26. Further submissions and evidence have been filed in accordance with our directions. The Director has filed substantive evidence setting out the history of the matter. After consideration of such evidence and submissions, solicitors for the applicant wrote to the Court on 21 November 2017 informing that the applicant shall continue with the appeal.
27. After hearing further oral submissions, we come to the conclusion that Au J was correct in refusing to extend time in this case.
28. The test for considering if time should be extended for an application for judicial review to be brought is set out in Re Thomas Lai [2014] 6 HKC 1 and AW v Director of Immigration [2016] 2 HKC 393. In assessing if there is a good reason for extending time, the Court will conduct a multi-faceted analysis including these factors:
(a) Length of the delay;
(b) Explanation for the delay;
(c) Merits of the substantive application;
(d) Prejudice;
(e) If the application involved questions of general public importance.
29. The analysis is a flexible one and the weight to be attached to relevant factors depends on the facts and circumstances of the case.
30. In the present case, it is to be noted that in the original Form 86, there was no challenge to the revocation of the GLLs. Actually, the reference to the decision of the Director of 5 October 2016 was incorrect. The actual decision cancelling the registrations of the SSTs was made on 25 January 2016.
31. Hence, even assuming that the original Form 86 can be read as a challenge to the decision to cancel the registrations, the judge was plainly right in holding that the challenge was brought out of time. On the material before the judge, we are also of the view that the judge was correct in holding that extension of time should not be granted.
32. As mentioned, after solicitors for the applicant had come on the record, the notice of appeal and the Form 86 had been substantially revised. In this connection, we have to reiterate that in Hong Kong, an appeal against a refusal of leave is not the same as a renewal of application for leave. Ms Ng’s submission to the contrary is without foundation as the authority she cited, Park Lomen Inn Ltd v Appeal Board (Hotel and Guesthouse Accommodation) [2015] 4 HKLRD 506 at [10] did not support her.
33. Thus, this Court has held that though there is power to allow an applicant to revise the grounds for seeking judicial review and to admit further evidence to support the application, unlike a renewed application for leave, these are not steps that can be taken by an applicant as of right.
34. Further the Court should only permit such courses to be taken after careful consideration, see Cathay Pacific Airways Flight Attendants Union v Director-General of Civil Aviation [2007] 2 HKLRD 668; Yu Hung Hsua...
| 
