HCAL 2198/2023

[2024] HKCFI 2221

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2198 OF 2023

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BETWEEN

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J U D G M E N T

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A. Introduction

1. Two score and four years after two lots of land were resumed by and reverted to the Government in 1976, the Applicant company – which had only been in existence since 2006 – brought forth a claim for compensation under the Lands Resumption Ordinance Cap 124 (“LRO”). By a decision dated 11 September 2023 (“Decision”), the Director of Lands (“Director”) refused the Applicant’s claim for compensation.

2. By Form 86 dated 8 December 2023, the Applicant company sought leave to apply for judicial review so as to challenge the Decision.

3. I gave directions for the Director to file an Initial Response which was filed on 6 February 2024. I also gave directions for there to be an oral hearing of the application for leave, which I fixed for 19 March 2024. At that hearing, the Applicant was represented by Mr Edward MH Chan of Counsel, and the Director was represented by Mr Alvin Hor, Acting Senior Government Counsel, together with Ms Nova Tang, Government Counsel.

4. At the beginning of the hearing, I canvassed the possibility of dealing with the matter on a ‘rolled-up’ basis, but Mr Hor thought that the Director might wish to file evidence if leave were to be granted. Therefore, the hearing dealt with the question of leave only.

5. At the end of the hearing, I granted leave to apply for judicial review – essentially because I thought each of the two main points were reasonably arguable, and that it would in any event be helpful for there to be consideration of perhaps previously conflicting Hong Kong decisions, and with the benefit of at least one Australian decision on a similar topic. I also gave directions relating to the filing of further evidence and fixing a hearing. Further affidavit evidence was indeed filed, though with respect it is largely irrelevant to the central issue to be decided, which is one of statutory construction.

6. The substantive hearing was fixed for and occurred on 28 August 2024, when the Applicant was again represented by Mr Chan. The Director was represented by Ms Frances Lok SC, leading Mr Hor and Ms Tang.

7. A the end of the hearing, I reserved my decision to be handed down a few days later. This is my Judgment.

B. Background

8. The factual background to the application is essentially not controversial.

9. The application concerns the resumption of Lot Nos 52 and 57 in DD 131 (“Lots”). The Lots were previously held by two owners as tenants-in-common in equal shares. The two owners were Mr Shum Chik-Kai (“Shum”) and Madam Yeung Chi-king (“Deceased Owner”), who passed away on 6 February 1976. It seems that Shum and the Deceased Owner were co-owners of a number of pr