FAMV No 71 of 2024

[2024] HKCFA 26

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 71 OF 2024 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACV NO 408 OF 2022)

_______________________

_______________________

____________________________________

DETERMINATION

____________________________________

Mr Justice Lam PJ:

1. In 2020, the Director of Lands refused (“ the Decision ”) the applicant’s application for land exchange regarding its land in Fanling Area 48 in northern New Territories (“ the Application ”). The applicant was successful before Wilson Chan J in its application for judicial review in respect of the Decision. On appeal, the Court of Appeal reversed the judgment of the Judge. The applicant now seeks leave to appeal to this Court and raises five questions as questions of great general or public importance. It also seeks leave on the “or otherwise” basis.

2. In the Form B of 7 June 2024, the applicant set out the five questions and elaborated the same with some sub-questions which it invites the Court to consider. The full contents of the questions are set out in the Annex to this Determination [1] . For present purposes, it is sufficient to set out the five main questions without the sub-questions. The five main questions are:

“Question 1: Whether a decision made by the Director of Lands pursuant to and/or in implementing a purported or alleged policy (“Purported Policy”) not to entertain non-small house land exchange applications within village environs (“VE”) boundaries for the preservation of land for small house development by indigenous villagers under the Small House Policy is amenable to judicial review.

Question 2: In the context of judicial review applications, what is the correct approach in considering the inter-relationship between burden of proof and the duty of candour (or breach thereof).

Question 3: Whether the Purported Policy (if exists), essentially in the nature of a blanket refusal of land exchange applications for land within VE boundaries other than for small house development, is necessarily or inherently illogical, irrational and perverse.

Question 4: In the situation where a respondent (as in the case of the Director of Lands in the present case) seeks to assert that an administrative policy provides for exception(s), what is the proper or correct approach in determining the applicable evidential threshold that such respondent has to overcome for the purpose of proving that: (a) the asserted exception(s) does/or exist; and (b) there had been proper operation of the asserted exception(s).

Question 5: Whether, by virtue of s.13 of the Town Planning Ordinance ( Cap 131 ) (“TPO”), a zoning designation in a plan approved by the Chief Executive in Council under the TPO constitutes a representation by the Government of its planning intention in respect of land subject to such zoning decision (i.e. that the Government and public officers, as are statutorily obliged under s.13 of the TPO, would not