A

HCAL 145/2014

B
C
D

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

C
D
E

NO 145 OF 2014
------------------------

BETWEEN
G

CHAN KAM CHUEN

1st Applicant

LIU KAM CHUN

2nd Applicant

CHAN WAI NAM,

MANAGER OF CHAN TING YU TSO,
REGISTERED OWNER OF DD 76, LOTS 6,
1696, 1720 AND 1722

3rd Applicant

CHAN KWAI FUK

4th Applicant
5th Applicant

LAW CHUN PING,

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 Applicant

J
K
L

P
Q

DIRECTOR OF LANDS

1st Putative Respondent

SECRETARY FOR TRANSPORT

AND HOUSING

2nd Putative Respondent

SECRETARY FOR DEVELOPMENT

3rd Putative Respondent

L
M

and

R
S
T

- 2 A

B
C

-----------------------Before : Hon Au J in Court

B
C

Date of Hearing : 5 March 2015

D
E

Date of Decision : 5 March 2015

Date of Reasons for Decision and Decision on Costs : 13 March 2015

________________________________
R E AS O N S F O R D E C I S I O N

AND

DECISION ON COSTS

________________________________
I
J
K

A.
1.

INTRODUCTION
The applicants apply for leave to apply to judicially review

J
K

the decision (the Decision) effectively of the Director of Lands (the

L
M

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

L
M

District for the purpose of Public Work Project No 5013GB (namely, the
N
O

project of Liantang/Heung Yuen Wai Boundary Control Point and

Associated Works) (the Project) pursuant to the Roads (Works, Use and

N
O

Compensation) Ordinance (Cap 370) (the Ordinance) as described in

P
Q
R
S

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.

P
Q
R
S

- 3 A
B

3.

By way of the EPRs Notice issued under s 16 of the

Ordinance, the Director informed, among others, the applicants that the
C

EPRs are created over the Lands.

C
D

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

G
H
I
J
K
L

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

27 February, 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:

G
H
I
J
K
L
M

(1)
N

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

N
O

the substrata of the Lands under s 13 of the Ordinance. The

P

Directors purported reliance on s 15 of the Ordinance to

create the EPRs is thus unlawful. This is particularly so as

P
Q

the standard of compensation assessment under s 15 (for

R

easements) is different from that to resumption under s 10 of

the Lands resumption Ordinance (Cap 79A)1 (the easement

R
S

arguments ground).
T

See paragraphs 59-82 of the draft Amended Form 86.

- 4 A

(2)

The Decision is tainted with procedural irregularity or

unfairness as the Director has failed to properly affix the

C

EPRs Notice and/or serve the EPRs Notice on the applicants

pursuant to s 16 of the Ordinance 2 (the affixation and/or

C
D

service ground).
E

7.

The putative respondents (represented by Mr Paul Shieh SC

together with Ms Teresa Wu) at the invitation of the court appeared at the
G
H
I
J

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

H
I
J

decision.
K
L

9.

These are what I do now.

B.

10.

L
M

BRIEF BACKGROUND

(1)

The relevant brief background can be summarized as follows3:

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

Q

the scheme (the Scheme).

The general nature of the

proposed works included (i) construction of an approximate

Q
R

4.8 km dual 2-lane road tunnel between Princess Hill and

S

S
2

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.

- 5 A

Lung Shan (the Lung Shan Tunnel) with associated cross

passages. Notice in relation to the deposit of the Plans and

C

the Scheme was firstly gazetted under GN 7025 on

9 November 2010.

D
E

(2)

GN 7025 identified the EPRs to be created on certain parcels

C
D
E

of land in DD 76 and DD 85, including the Lands, for the

purpose of or incidental to the works of the Project.
G

(3)

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

J
K

(4)

L
M

GN 7025 stated that members of the public could inspect the

(5)

F
G
H
I

than 60 days after the date of publication.

GN 7025 was published in 2 issues of Ming Pao and The

Standard on 12 November 2010 and 19 November 2010.

On 12 November 2010, the Civil Engineering and

Development Department affixed copies of the notice under

N

GN 7025 within the concerned works areas.

(6)
P
Q

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.

P
Q

- 6 A
B

(7)

The Civil Engineering and Development Department had

issued letters (with copies of GN 7025 published on

B
C

12 November 2010 and 19 November 2010, the Plans and the

D

Scheme) to the Rural Committees, including the Fanling

District Rural Committee, requesting for their assistance to

D
E

distribute GN 7025 to the village representatives and/or to

F

inform them for collection.

G

(8)

Amendments had been made to the Scheme to accommodate

design development and in view of the objections.

The

G
H

Amended Plans and the Amended Scheme were gazetted

I

under GN 5861 on 9 September 2011 and 16 September 2011.

(9)
K
L

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

K
L

objections be made to the Secretary for Transport and

M
N
O

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

M
N
O

9 September 2011 and 16 September 2011, and the notice

P
Q
R
S

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.

P
Q
R
S

- 7 A
B

(12) On 27 March 2012, the Chief Executive in Council authorized

the works and the use as described in the Amended Plans and
C
D

the Amended Scheme under s 11(2) of the Ordinance, as

gazetted under GN 2759 dated 20 April 2012 and published

C
D

on 27 April 2012 and 4 May 2012 respectively.

E

(13) On 15 June 2012, pursuant to the power delegated by the

Chief Executive, the Deputy Director/Specialist of the Lands
G

Department ordered (the Easement Order) the creation of

F
G

the EPRs in, under and over the lands described in Plan No
H
I

DNM 2357b Sheets 1 to 3 (the Easement Plan) for the

purpose of or incidental to the works of the Project with a

H
I

3-month notice period under s 15. A notice to that effect as

J

set out in GN 4235 was prepared.

J
K

(14) On 21 June 2012, the District Lands Office/North affixed

L
M
N

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

L
M
N

1 issue of The Standard on 22 June 2012.

O

(16) Copies of EPRs Notice and the Easement Plan had been
P
Q
R
S
T

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.

P
Q
R
S
T

- 8 A

(17) On 25 June 2012, the District Lands Office/North sent two

copies of the ERPs Notice and two sets of Easement Plans to

C

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

C
D
E

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.

F
G

If the addresses provided by the Land Registry were different

H

from the addresses kept in the A Book, an extra copy of the

letter enclosing the EPRs Notice was also sent to the

H
I

addresses of those affected landowners as shown in the

J

A Book.

K
L

J
K

C.

REASONS FOR REFUSING LEAVE

C1.
Grounds not reasonably arguable with a realistic prospect of
success

11.

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

- 9 A
B
C
D
E

G
H
I
J
K
L
M

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
28 days 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.

Q
R

(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.

B
C
D
E
F
G
H
I
J
K
L
M
N
O
P
Q
R

- 10 A

(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.

B
C
D

C
D

13.
E

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)

E
F
G
H

Under common law, it is trite that an easement cannot

substantially deprive the servient owner of proprietorship or

J

possession4.

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

J
K
L

the Lands for the purposes of building road tunnel would be

M

permanently and exclusively occupied by the Government.

(4)

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.

R
S
T

This amounts to an exclusion of the applicants from

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.

M
N
O
P
Q
R
S
T

- 11 A

(5)

If the Government wants to do that, she should seek to

exercise the power under s 13 to resume the underground

C

strata.

14.
E

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,

E
F

these two terms are expressly used disjunctively and separately under s 15.
G
H

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

G
H

the legislatures intention.

I
J

15.

As I think fairly accepted by Mr Pun at the hearing, the term

permanent rights means and includes some permanent rights created

K
L

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

K
L

by a resumption (contrasting the power under s 13 of the Ordinance). By

M
N

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

M
N

contrast, a resumption order would have the effect of vesting the

O
P

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

O
P

piece of land. In other words, as submitted by Mr Shieh, the permanent

Q
R

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

Q
R

that ownership such as the right to sell the land or to use substantially the
S
T

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

S
T

- 12 A
B

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

C
D

tantamount to effectively resumption. This is particularly so as under the

Schedule in Part II of the Ordinance, compensation would be assessed on

C
D

the open market value of the claimants interest in the land that is
E

diminished by reason of the EPRs.

16.
G
H

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

G
H

have been subject to the EPRs. It also does not affect the title of the Lands
I
J

(which include the rights over and under them).

The applicants,

notwithstanding the EPRs, are still free to deal with the Lands together

I
J

with substantial portion of the substrata where the EPRs are created as title
K
L

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

K
L

loss which would be compensated in value. This is my view must fall

M

within the meaning of the permanent rights but not arguably a resumption.

17.
O
P

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

O
P

permanent right is created, without any reference to the entire piece of the
Q
R

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

Q
R

particular part of the land is concerned, it is a resumption, because,

S
T

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

S
T

- 13 A
B

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

C
D

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

C
D

context and by reference to those words in, under or over, the

E

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

E
F

above space) concerned land or the entire parts (which similarly includes
G

its substratum, surface and above space) of the concerned land.

18.
I
J
K
L

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.

I
J
K
L

C1.2 The affixation/service ground

20.

S 16 of the Ordinance provides as follows:

16. Notices of creation of easements or other rights

O
P
Q
R
S

(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;

P
Q
R
S
T

- 14 A
B
C

(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.

H
I
J
K

(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);

D
E
F
G
H
I
J
K

(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);

N
O
P
Q
R

(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.

N
O
P
Q
R

- 15 A
B

21.

The applicants say the Director has failed to comply with

s 16(1) in relation to the obligations to (a) affix the ERPs Notice that
C

created the EPRs, and (b) serve the ERPs Notice on the applicants.

22.
E

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 Lands5.

G
H
I
J
K
L

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 1 st 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]:

M
N

(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;

O
P

(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

Exhibit CSL-9.

E
F
G
H
I
J
K
L
M
N
O
P
Q
R
S
T

- 16 A

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;

C
D

(footnote omitted)

25.

In further support, Mr Pun also relies on a letter dated

6

B
C
D
E
F

st

16 September 2013 sent by the 1 applicant to the Secretary which stated,

G

inter alia, the following:

H
I
J
K

26.

60

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).

L
M
N
O

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

M
N
O

my view has been demonstrated clearly to have been done by the photos
P
Q

(in particular, there is no evidence from the applicants to say the positions
where those notices were affixed cannot be regarded as prominent ones).

P
Q

The assertion that the applicants have somehow not seen those notices
R
S

(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

R
S

statutory provision. In any event, I do not accept that the above quoted
T

See Exhibit CCFM-3 at hearing bundle C/504-6.

- 17 A
B

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
C
D

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

C
D

applicants had not seen the Notice. The part of the letter relied on has
E

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

E
F

made and thus the need to issue and affix the EPRs Notice.
G
H

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

I
J
K
L
M

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)

K
L

S2(2) of the Ordinance provides expressly that the service

needs to be done either by hand or by registered post.

N

(2)
O

only done through recorded delivery, which is therefore not

P
Q
R

The Director in the evidence filed now confirms that that was

(3)

either by hand or by registered post.

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

S

create the EPRs.

- 18 A
B
C

31.

This ground is not reasonably arguable:

(1)

The relevant decision under challenge is to create the EPRs.

B
C

One must therefore consider whether the claimed procedural

D

irregularity or unfairness is pertinent or relevant to that

decision making process.

In other words, whether the

D
E

procedural irregularity is material to that decision or its

process.
G

(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

F
G
H
I

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

J
K

object to the major works proposed to be carried out in the

L

earlier stages of the statutory process under ss 10 and 11.

However, once that process is completed and the works have

L
M

been authorized by the Chief Executive in Council under

N

s 11(2), there is no right to object to the thereafter creation of

the EPRs necessary and incidental to the works. Persons

N
O

affected by the EPRs could of course claim for compensation

P
Q
R

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,

P
Q
R

right, share or interest in the land mentioned in the EPRs

S

Notice is not material, pertinent or relevant to the EPRs

- 19 A

decision making process7. One can test it this way: assuming

that the Director had complied with the means of service

C

(instead of serving it by recorded delivery), what different

things the applicants would have been able to do vis--vis the

C
D

decision to create the EPRs. Mr Pun rightly accepted that

E

there was probably nothing except perhaps they could have a

full 12-month period provided under s 28 and the Schedule

E
F

under Part II to make the claim for compensation, instead of a

G

shorter time given that the applicants alleged that they only
came to know about the EPRs at a later time. This (ie, the

G
H

applicants had had a shorter period to make the claim) even if

I

correct (which I am not determining8), has nothing to do with

the decision to create EPRs, but only in relation to the

applicants claim for compensation.

K

Insofar as that is

concerned, even if Mr Pun is right to say that the shorter

period would have prejudiced the applicants preparation to

K
L

make the claim (where there are in fact no such suggestions

M

put forward by the applicants in evidence), it is pertinent to

note that the Lands Tribunal (which deals with the

N
O
P

R
S
T

N
O

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.

P
Q
R
S
T

- 20 A

compensation claims) has ample discretion on wide bases to

extend time under s 28 of the Ordinance.

C

(4)
D

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

D
E

constitute an arguable ground to judicially review the

Decision.
G

F
G

32.

I therefore would also not grant leave on this basis.

C2.

33.

Delay and no extension of time

The relevant Decision was made in June 2012. From the

I
J

applicants own evidence, leaving aside the complaint about the failure to
K
L

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

K
L

1st applicants letter to the Secretary dated 31 July 2013 9). The application
M
N

for leave to apply for judicial review was only made on 29 October 2014.
It was thus made seriously out of the 3-month period under O 53 r 4. The

M
N

applicants thus also seek extension of time to apply for judicial review.
O

The putative respondents oppose any extension of time to be granted.

34.
Q
R

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

Q
R

the sake of completeness, I would briefly deal with this part of the
S
T

application as well.
9

Exhibit CCFM-1 at Hearing Bundle C/486-488 at 487.

S
T

- 21 A
B

35.

If necessary, I would have refused to grant any extension of

time for the following reasons.

C
D

36.

It is common ground to adopt the applicable principles

summarized by G Lam J in Re Thomas Lai [2014] 6 HKC 1 at

E

paragraph 45 on whether to grant extension of time in a judicial review

application:

G
H

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:

I
J
K
L
M
N
O
P
Q
R
S
T

G
H
I

(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 O 53 r 4(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, Hartmann J said in
Law Chun Loy v Secretary for Justice, supra, at 13:
In summary, any person who seeks by way
of judicial review to challenge a public law

J
K
L
M
N
O
P
Q
R
S
T

- 22 A

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.

B
C

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.

D
E

G
H

(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.

I
J

(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.

K
L
M
N
O

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

I would not exercise my discretion to extend time for the following
reasons:

(1)

C
D
E
F
G
H
I
J
K
L
M
N
O

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

P
Q

10

least 19 months (from March 2013 to October 2014).

R

S
10

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.

- 23 A
B

(2)

The explanation for the delay relied on by Mr Pun is that

since March 2013, the applicants had been ascertaining with

C
D

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).

C
D

That lasted until

September 2014 by way of correspondence, whereby the

authority had been shifting its position back and forth between

E
F

by hand and by registered post. It is thus, says Mr Pun, not

G
H

unreasonable for the applicants to have waited and clarified

with the authority in order to properly consider whether there

G
H

was any ground to challenge the Decision on the basis of

I
J

service as well.

The applicants should therefore not be

criticized or prejudiced for taking this non-confrontational

I
J

stance. With respect, this does not amount to good reason or

K
L

explanation for the delay. First, it is Mr Puns position that

the easements argument constituted a good ground to
challenge the Decision.

M
N

K
L

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

M
N

to bring a judicial review on what he believes to be a good

O
P

ground, should be generally excused to wait for a longer time,

until he could ascertain he may also be able to challenge the

O
P

decision on another potential ground. This is particularly so

Q
R

when, as I said above, the original Form 86 contained 9

grounds of judicial review. Second, in the circumstances of

Q
R

this case, it is clear that although the authority was changing

S
T

the position as to by exactly which means it had served the

EPRs Notice, it had maintained all along the position (rightly

S
T

- 24 A

or wrongly) that that had been done properly in accordance

with the statutory requirement. That was the same even by

C

September 2014, ie, a month before the leave application was

taken out. There is nothing before this court to say what

C
D

suddenly had prompted the applicants by then to think that

E

they then had a case to challenge the Decision on the basis of

service, and thus finally taking out the leave application on,

E
F

amongst others, that ground too. In the premises, I cannot see

G

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

G
H

whether they had a good ground to complain about service. I

I

therefore do not accept that the applicants have provided good

J
K

(3)

reasons or explanation for the substantial delay.

The merits of the substantive application: For the same

reasons I have stated above, even if I were wrong to say that

L

the grounds are not reasonably arguable, their merits are in

my view not so compellingly strong so as to outweigh the

L
M

very substantial delay and the lack of good reasons for the
N

delay so as to justify exercising the discretion to extend time.

(4)
P
Q

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

P
Q

public administration. Viewed against this, the prejudice that

R
S

may be caused to the applicants is outweighed in the scale of

the exercise of discretion: any such prejudice is caused by the

R
S

delay itself coupled with lack of good reasons for the delay.
T

Further, the applicants are entitled to, and have in fact

- 25 A

claimed, for compensation for the creation of the EPRs.

Finally, it is the applicants own case (see below) that they

C
D

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

C
D
E

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

F
G

and service arguments are also facts sensitive pertinent to the

H

circumstances of this case. This cannot justify the extension

I
J
K

(6)

of time.

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

L
M

with by the court perhaps in a private civil or criminal

proceedings context given that the applicants are likely to

L
M

contest the EPRs by way of say an injunction application or

N
O

obstruction against the carrying out of the construction of the

tunnel. This is a relevant factor that the court should consider

N
O

whether to extend time: R (British Waterways Board) v The

P
Q

First Secretary of State [2006] EWHC 1019 (Admin) at

paragraphs 16-17 per Collins J (as he then was), citing also

P
Q

Wandsworth LBC v Winder [1985] AC 461. In my view,

R
S

when the court take into account this factor in considering

whether to exercise the discretion to extend time, it must still

R
S

be looked at together with all the other relevant factors in each

T

case.

Mr Pun is not, I think, saying that this must be

- 26 A

considered as an overwhelming factor. This must be right. In

the present case, given the substantial and serious delay with
C

the lack of any good reasons, and the relatively weak merits
of the grounds, I do not think the fact that the applicants have

C
D

indicated that they may well raise the same issues in their
E

potential application for injunction or obstruction against the

carrying out of the tunnel construction outweigh these factors

E
F

against the grant of extension. In particular, as Mr Shieh

G

submits, it is up to the applicants to decide whether they do

eventually take out such injunction application in a private

G
H

civil claim or even obstruct the construction (which under s

I

24 of the Ordinance would constitute an offence liable for

imprisonment and a fine), and their rights to do so would not

I
J

in any way be prejudiced.

K
L

38.

For all these reasons, I would also refuse to grant extension of

time to the applicants to apply for judicial review.

M
N
O
P
Q

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.

O
P
Q

The general rule is that an unsuccessful applicant for leave should not be
R
S

required to bear costs. The court would only award costs against such an
unsuccessful

applicant

where

there

are

unusual

or

exceptional

R
S

circumstances to justify doing so. The discretion is a broad one but the
T

court should exercise that sparingly. In considering whether there are such

- 27 A
B

good reasons or unusual circumstances, the court takes into account all the

facts and circumstances that may be relevant to the exercise of that

C
D

discretion. See: Leung Kwok Hung v The President of the Legislative

Council (unreported, FACV 1/2014, 5 December 2014, Ma CJ, Ribeiro,

C
D

Tang, Fok PJJ and Sir Anthony Mason NPJ) at paragraph 17 per
E

Ribeiro PJ. This court, after having guidance from previous authorities,
sought to set out some of those common but non-exhaustive factors in TVB

E
F

v Communications Authority (unreported, HCAL 3/2013, 22 July 2013) at

G

paragraph 6, and I do not propose to repeat them here.

41.
I
J

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

I
J

look at in considering costs is what has led the opposing party to attend the
K
L

hearing. This must also be viewed together with the underlying merits of
the application and whether that partys attendance has been of material

K
L

benefit to the court, always bearing in mind that the context is the end
M

result that the court has refused to grant leave.

42.
O
P
Q

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

O
P
Q

attend the hearing is because of, as I said in the beginning, the

R
S

myriad and relatively confused grounds set out in the original

Form 86, which the court believed required the assistance of

R
S

the putative respondents to provide a better picture and

T

understanding of those grounds. This to that extent is caused

- 28 A

by the applicants own making. In this regard, it is pertinent

to note that it is only the day before the hearing that the
C

easements ground (which Mr Pun now says constitutes the

applicants stronger ground) is properly formulated and relied

C
D

upon and most of other grounds in the original Form 86 are

E

either not pursued or substantively consolidated and

reformulated.

(2)

Further, given the very substantial delay in making the

E
F
G

application, the need for extension of time, and the apparent

H

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

H
I

from the putative respondents for the purpose of the leave

J

application.

(3)

The putative respondents attendance has been of material

benefit to the court in the areas of evidence and legal

submissions.

M
N

(4)

The application is made to advance the applicants own

L
M
N

private interest.
O

(5)
P

The relative lack of merits of the application. I further repeat

the observation at subparagraph (1) above.

(6)
R

The applicants effectively had a roll-up substantive hearing of

the judicial review.

- 29 A
B

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

C

two counsel.

44.

Lastly, I thank counsel for their assistance.

E
F

G
H
I

(Thomas Au)
Judge of the Court of First Instance
High Court
Mr Hectar Pun and Mr Ernest CY Ng, instructed by Wong & Co, for the
applicants

J
K

G
H
I
J

Mr Paul Shieh SC, leading Ms Teresa Wu, instructed by Department of

Justice, for the putative respondents