The Judicial Committee of the Privy Council Decisions

Privy Council Appeal No. 11 of 1997

 

Fok Lai Ying Appellant

v.

(1) Governor in Council

(2) Governor and

(3) Director of Lands Respondents

 

FROM

 

THE COURT OF APPEAL OF HONG KONG

 

---------------

REASONS FOR REPORT OF THE LORDS OF THE

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL

OF THE 18th June 1997, Delivered the

27th June 1997

------------------

 

Present at the hearing:-

Lord Lloyd of Berwick

Lord Steyn

Lord Hoffmann

Lord Cooke of Thorndon

Lord Hope of Craighead

  ·[Delivered by Lord Cooke of Thorndon]

 

-------------------------

In judicial review proceedings in the High Court of Hong Kong, brought by the present appellant Madam Fok Lai Ying, Cheung J. granted a declaration that an order made by the Governor on 6th December 1995 for the resumption of (inter alia) portion of her land at No. 2, Ngau Pei Sha New Village, Shatin, New Territories, was null and void as to her land.  The order was made under the Crown Lands Resumption Ordinance 1900.  Notice of the resumption was gazetted on 15th December 1995 and affixed on the property on 20th December 1995.  The property is the home of the appellant, where she lives with her husband and grown-up children.  There is a substantial three-storey house and open space of about 2410 square feet.  The portion compulsorily resumed is about 2112 square feet of open space, including most of the drive and garden.  The effect is to deprive the property of its only access for motor cars to a public road and of car parking spaces.

1. The judge held that the power of compulsory resumption had to be exercised in accordance with the administrative law principle of fairness and that Madam Fok had not been given an adequate opportunity to make representations to the Executive Council.  While expressing the opinion that article 14 of the Hong Kong Bill of Rights (as to interference with a person's home) did not apply, because he thought that it did not extend to the right to hold and own property, he found it unnecessary to express a concluded view on whether, assuming that the article did apply, there had been an arbitrary or unlawful interference with her private rights.

 

2. On appeal the Court of Appeal (Litton V.-P., Godfrey and Ching JJ.A.) discharged the judge's order, their judgment being delivered by Litton V.-P.  In the sequence in which their reasons are given in the judgment they held (i) that on the true construction of the Resumption Ordinance the Governor was not bound before ordering a resumption to consult anyone other than the Executive Council: this, they said, was a reaffirmation of the law as stated in In re an application by K.O.Y. Investment Co. Ltd. [1983] H.K.L.R. 28; (ii) that on the facts Madam Fok's allegations of procedural unfairness were groundless; (iii) that it was unnecessary "to shut the door completely in the face of a home-owner in a case such as this" but that, assuming that article 14 was wide enough to protect property used as a home, the simple scheme for resuming land for public purposes set out in the Resumption Ordinance did not constitute any form of arbitrary or unlawful interference with private rights, so the challenge under that article must also fail.  From that judgment Madam Fok, by leave of the Court of Appeal, appealed to Her Majesty in Council.

 

3. At the end of the hearing their Lordships announced that they would humbly advise Her Majesty that the appeal should be dismissed, and that they would give their reasons later, as they now do.  They begin by examining the facts in more detail, as a proper appreciation of these leads inevitably in their view to the failure of the appeal.

 

The History

 

4. Following the cession of the New Territories by China to the British Crown for 99 years from 1st July 1898, the common or customary Chinese tenure upon which the greater part of the land was held was replaced under the provisions of Ordinances by long leases from the Crown.  Pursuant to a Joint Declaration signed in 1984 on behalf of the British and Chinese Governments, the New Territories Crown leases were in 1988 extended until 30th June 2047 by the New Territories (Leases) Extension Ordinance. The land  was  generally  agricultural  or  garden  ground, with many villages, and its use was restricted by covenants; but from 1972 the Government implemented a Small House Policy whereunder licences to build such houses were available to indigenous villagers, that is to say males descended through the male line from men who were residents in 1898 of the 650 established villages in the New Territories.  Such a licence was granted for the appellant's lot in 1978; it showed by a plan where a three-storey house was to be built; the remainder of the lot had to continue to be used for agricultural or garden purposes.  The licence was not to be disposed of without the consent of the District Officer, who could require a premium equal to the full market value.  The appellant, who is not an indigenous villager, purchased her lot in 1981.  In 1995 her family renovated the house and garden.  No issue has been taken in the case with the lawfulness of any of the development carried out on behalf of the appellant on her land.

 

5. In 1981 the Government adopted a Village Expansion Policy whereunder building lots would be made available for New Territories villagers who qualified under the Small House Policy.  These lots would be provided either by the acquisition and formation of sites within urban development areas or by the resumption of land outside such areas.

 

6. On 5th July 1988 the Governor in Council, under section 9(1)(a) of the Town Planning Ordinance 1939, approved a draft layout plan prepared by the Hong Kong Town Planning Board and described as Shatin Outline Zoning Plan.  It was exhibited for public inspection, advertised in local newspapers and notified in the Gazette.  By section 6 of the Town Planning Ordinance any person affected by a draft plan so exhibited had a statutory right of written objection within two months.  The Board had powers of amendment and an objector might withdraw an objection; if not withdrawn it was to be considered at a meeting of which the objector was to have reasonable notice, and he or his authorised representative had a right to attend the meeting and to be heard.  After consideration of all objections the Board was to submit the draft plan, with or without amendments, to the Governor in Council for approval.  The Governor in Council then had wide powers, but in the event of approval the approved plan was to be exhibited for public inspection and gazetted.  Any person could obtain a copy of an approved plan.

 

7. The appellant did not exercise that right of objection.  The draft plan showed that the area in which the land was situated (area 35) was to be for village type development, giving no further details.  Before their Lordships her counsel, Mr. McDonnell Q.C., suggested that this general designation would have  reassured  her,  as  her  own  house was already village type

development.  That may be so, though there is no evidence to that effect.  What is clear is that, in the absence of any specific indication that her property was likely to be interfered with, an objection by her to the Outline Zoning Plan could not reasonably be expected.

 

8. Whereas the Outline Zoning Plan had statutory force and was exposed to statutory rights of objection, the same did not apply to more detailed layout plans prepared from time to time for area 35 by the Planning Department.  Evidently these were available for inspection by interested persons but there is little or no evidence as to when any of them were first seen by the appellant or her advisers.  According to an affirmation by a senior land executive in the District Lands Office, earlier plans in the 1980s showed that the ground level of the appellant's land, apart from the site of the house itself, was to be elevated.  If this was appreciated on the appellant's side, it apparently gave no cause for concern.  But in 1990 and 1991 new layout plans were prepared.  They provided for (inter alia) much more drastic interference with the appellant's property.  Village representatives were consulted about the new plans and agreed.  The appellant says that, not being an indigenous villager, she was not privy to these consultations and was given no opportunity to object at that stage.

 

9. A circular letter dated 7th October 1991 was sent by the District Lands Office to Madam Fok (among others) advising that implementation of the Ngau Pei Sha Village Extension project would involve resumption of private agricultural and building land.  It said that qualified villagers who were owners of private building lots might be offered village removal terms (more favourable than ordinary compensation) if they acquired the lots by 9th July 1991.  Madam Fok was not a qualified villager and took no action upon this letter.

 

10. On 30th July 1993 notice was published in the Gazette under section 8 of the Roads (Works, Use and Compensation) Ordinance 1982 that the Secretary of Transport proposed to execute road works in three villages of zone 35.  That Ordinance allows for objections, in provisions broadly similar to those of the Town Planning Ordinance.  Again the appellant did not exercise her right of objection.  The road works plan showed some minor encroachment of proposed houses on to the appellant's land but did not indicate any significant acquisition of her drive.  It did show that a small piece of Crown land outside her gateway, over which she had de facto but possibly not de jure access to the public highway, was proposed to be incorporated in the highway.  Nothing in this plan was seen as of any concern by the appellant.

 

 

11. The next noteworthy development in the history of the matter was a letter dated 23rd November 1993 from solicitors acting for Madam Fok to the District Land Office.  Referring to the circular of 7th October 1991, this letter requested particulars of the proposed resumption of building lands in the locality.  All that was elicited was a reply dated 6 December 1993 stating that unless and until the Governor ordered land resumption the officer was unable to advise whether her private land would have to be resumed.

 

12. There was then an interval until 15th February 1995, when a firm of property agents acting for Madam Fok wrote to the District Planning Office a letter referring to the change in layout plans and stating that under the new plan it appeared that most of the garden land would be resumed and that no vehicular access would be left after implementation of the layout.  They accordingly applied for a change of layout back to the original plan.

 

13. In similar vein another firm of solicitors acting for the appellant wrote to the Clerk to the Executive Council on 27th March 1995 a letter to which their Lordships attach particular significance in the case.  The body of the letter reads as follows:-

"We are consulted by Md. Fok Lai-ying, the registered owner of the Property.  The property consists of a detached house, garden, parking spaces and vehicular access to a public road.  The Property is presently occupied by Md. Fok and her family as residence.

 

14. We are instructed that according to the Layout Plan No. L/ST 35/1, the house sites planned by the Planning Authority had not encroached our client's property.  The Property would therefore not be affected on implementation of the Layout Plan.  Extract of L/ST 35/1 prepared by Franklin's Co. is enclosed marked `X' in which the boundary of the Property is coloured yellow for identification purpose.

 

15. It has been recently come to our client's knowledge that the Layout Plan has been amended in January 1991 being Layout Plan No. L/ST 35/3 and as a result, the house sites has been re-arranged, and that the majority of the garden area, parking spaces and vehicular access to the public road will be encroached.  She wishes to point out that she has never been consulted nor informed of such amendment and thus could not raise any objection nor comment thereto.  Extract of L/ST 35/3 is enclosed marked `Y'.

 

 

16. As shown in the Layout Plan No. L/ST 35/3 portion of the Property would have to be resumed if the Layout Plan is to be implemented and the existing vehicular access would be blocked, part of the garden and parking spaces would vanish.

 

17. Lately, our client understands that implementation of the Layout Plan No. L/ST 35/3 is underway and that portion of the Property might be resumed and thus our client's use and enjoyment of the Property will be severly affected.

 

18. In February 1995, she employed Messrs. Franklin's Co. to write to Shatin and North East District Planning Office.  Copy letter dated 15th February 1995 for Messrs. Franklin's Co. is herewith enclosed for your easy reference.  No response thereto has been received from the said Office.

 

19. As we understand that all Government Land resumption programmers must firstly be approved by the Council, we are therefore instructed to request you to bring notice to the Members of the Counsel of her objection when considering the resumption for implementation of the Layout Plan No. L/ST 35/3.

 

20. We shall be pleased to supply further information as you may require."

 

21. It will be seen that the sole request made in the letter was that her objection be brought to the notice of the members of the Executive Council when considering the resumption.  In April the solicitors sent copies of their letter for the attention of the Director of Lands, the District Land Officer, the District Planning Office and the Director of Planning.  They made no further request.

 

22. On 30th March 1995 the District Planning Office replied by letter to the letter from the property agents.  The reply said that neither the old nor the new plan made any provision for vehicular access to the site.  "From a planning point of view, in approaching a village layout, the standard practice is to provide communal parking within the village taking into account of the various land restraints in village areas".  As to the road works, the reply gave the Gazette references for them and to a notice whereby the Secretary of Transport authorised their execution.  The letter of reply concluded "Since concerned departments are already proceeding to implement the layout plan, very strong justifications are required before we re-examine the need to further revise the layout plan".

 

 On 24th April 1995 the property agents wrote to the District Planning Officer acknowledging their reply, pointing out that vehicular access and car parking were not the appellant's only concerns, and asking for a copy of the engineering details of the roadworks for their client's information.  They mentioned "Just for your information" that their client had instructed a solicitor to apply to the Executive Council to consider not approving the forthcoming resumption proposals.  They concluded by expressing a hope that their client's request would be favourably reconsidered by the District Planning Officer.

 

23. In the meantime, on 3rd April 1995, the Clerk for the Executive Council wrote to the solicitors, acknowledging their letter of 27th March 1995 and saying "We are looking into the case and shall revert to you as soon as we can".

 

24. On 5th May 1995 the District Planning Officer wrote to the appellant's solicitors.  He referred to their letter of 27th March 1995, said that the Clerk to the Executive Council was now seeking views from the District Lands Officer (Shatin) on that letter, and continued "We shall provide our input to the District Lands  Officer for their co-ordinated reply to the Clerk".  He enclosed a copy of his letter to the property agents of 30th March 1995.  He added "Should you have further questions on the above, please contact this office direct".  The appellant by her solicitors was thus expressly notified of that which in any event was a natural and obvious inference, viz. that comments from the responsible administrative agencies would be placed before the Executive Council to enable the Council to consider the appellant's objection.  The solicitors did not at that stage or ever take up the opportunity of asking any further questions, nor did they send any comment to the Planning Department about the proposed procedure.  On 6th June 1995 the Clerk to the Executive Council wrote to the solicitors stating that the Executive Council would be notified of their objection when the resumption proposal was submitted for its consideration.  Again the solicitors did not respond with any further request or any complaint about the procedure.

 

25. On 12th June 1995 the solicitors wrote to the Project Manager in Kowloon, with copies to the Shatin District Lands Office and the Shatin Planning Office.  They outlined their client's concern about the resumption and asked for a copy of the engineering plan which was exhibited for public inspection at the time of the road works gazetting.  This letter spoke of "her forthcoming objection" and "In order to enable us to prepare our objection".  It thus appeared to imply that at that stage some further form of objection was contemplated, but it requested no more than the engineering plan.  The plan was duly supplied and paid for by the end of June.  No further objection was in fact forthcoming.  The correspondence then abated until 2nd December 1995 when the solicitors wrote to the Clerk to the Executive Council thanking him for his letter of 6 June and requesting information on the current position of the matter at his convenience.  A reply on his behalf on 22nd December 1995 stated that their letter of 2nd December had been referred to the District Lands Office (Shatin) which would give a reply at their earliest convenience.  Their Lordships note that by this time the resumption order had been made and gazetted.  Moreover the notice had also been affixed on the property.  Up to this stage the correspondence indicates an assumption on all sides that there was nothing untoward about the procedure.

 

26. The matter then took a different turn.  On 27th December 1995 the property agents wrote to the District Lands Office, referring to the Gazette notification of resumption.  They said that the notification contained no provision for the voicing of objections, nor was there any avenue for appeal.  They went on that their client was of the opinion that the Gazette had not been fair and that the old law on resumption might be out of date in view of the new law in human rights.  She was consulting her counsel and would not surrender the land concerned to the Government until all legal means to protect her right had been tried and failed.

 

27. The subsequent correspondence need not be traversed except to mention that a letter from the District Lands Office to the solicitors dated 2nd January 1996 recorded that their client's objection had been noted by the Executive Council when considering the resumption.  The Government's position is that the land in question reverted to the Crown on 21st March 1996 in accordance with section 5 of the Crown Lands Resumption Ordinance and with the notice affixed to the land, which provided for reversion on the expiration of three months from the affixing.  Offers of compensation have been made to Madam Fok but not accepted.  The Resumption Ordinance provides for compensation, to be determined by the Lands Tribunal if necessary.  The Government says that this is full compensation based on market value; before their Lordships counsel for the appellant intimated some reservations about that but did not point to any significant limitation.

 

The Principles

 

28. The appellant's attack on the resumption has been based on the principles of natural justice and article 14 of the Hong Kong Bill of Rights.  It has not been contended that the resumption should be nullified for unreasonableness on the merits.  Under both heads the  gravamen  of  her  complaint  is that, before the Governor in Council decided on the resumption, she was given no opportunity to respond to the arguments by officials in support of their proposal that her land be resumed and against her objection stated in her solicitors' letter of 27th March 1995. 

 

29. The affirmation by the senior land executive previously mentioned indicates the nature of these arguments in para. 39:-

"Despite the fact that the resumption proceedings were at a very advanced stage when the Applicant's objection to Executive Coucil was received, the feasibility of excluding the affected portion of the Applicant's Property from the resumption was investigated.  However, exclusion was considered impracticable for the following reasons:-

 

(a)four planned house sites would need to be re-sited.  The re-sited houses would be susceptible to flooding because they would be completely surrounded by the existing boundary wall of the Property and a new retaining wall which would be required to be built;

 

(b)redesign of the engineering works and amendments to the approved layout plan would take considerable time to complete.  The project would thus be delayed, and the disappointed and impatient villagers would be likely to react strongly; and

 

(c)engineering works in the vicinity of the Property would have to be redesigned incurring about one million dollars additional engineering costs;"

 

30. The tenor of her probable response, as outlined by her counsel before their Lordships, would have been that these arguments exaggerated the difficulties.

 

31. In order to consider whether the appellant's complaint is valid it is necessary to have regard to the background principles of administrative law and the Hong Kong Bill of Rights.  In view of the conclusions that they have reached on the facts, as hereinafter stated, their Lordships` can deal with the principles and the arguments of counsel about the principles quite briefly.

 

32. As to natural justice or fairness, to indicate the position currently reached by English administrative law it is enough to recall that in Reg. v. Secretary of State for the Home Department, Ex parte Doody [1994] 1 AC 531, 560 Lord Mustill with the concurrence of four other members of the House of Lords spoke as follows:-

 

 

"What does fairness require in the present case?  My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment.  They are far too well known.  From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances.  (2) The standards of fairness are not immutable.  They may change with the passage of time, both in the general and in their application to decisions of a particular type.  (3) The principles of fairness are not to be applied by rote identically in every situation.  What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects.  (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken.  (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both.  (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer."

 

33. As to the Bill of Rights, the long title of the Hong Kong Bill of Rights Ordinance 1991 is An Ordinance to provide for the incorporation into the law of Hong Kong of provisions of the International Covenant on Civil and Political Rights as applied to Hong Kong; and for ancillary and connected matters.  By section 3:-

"Effect on pre-existing legislation

 

(1)  All pre-existing legislation that admits of a construction consistent with this Ordinance shall be given such a construction.

 

(2)  All pre-existing legislation that does not admit of a construction consistent with this Ordinance is, to the extent of the inconsistency, repealed."

 

34. Section 4 provides a rule of construction for legislation enacted on or after the commencement date; this is not relevant to the present case, which is governed by section 3.  The Bill of Rights itself is in Part II of the Ordinance.  Article 14 provides:-

 

"Protection of privacy, family, home, correspondence, honour and reputation

 

(1)  No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

 

(2)  Everyone has the right to the protection of the law against such interference or attacks."

 

35. That is identical with article 17 of the International Covenant.  Article 8 of the [European] Convention for the Protection of Human Rights and Fundamental Freedoms is in different terms:-

"(1)  Everyone has the right to respect for his private and family life, his home and his correspondence.

 

(2)  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

 

36. Article 1 of the first Protocol to the European Convention contains provisions about the peaceful enjoyment of possessions.  These have no specific counterpart in the Hong Kong Bill of Rights, but in the light of the express protection of the home provided for in article 14 of the Hong Kong Bill it is unnecessary for present purposes to explore how far there is any practical difference as regards property other than the home and correspondence.  While article 14 is expressed in more positive terms than article 8 of the European Convention and does not contain the express limitations found in clause (2) of the latter, it is directed against arbitrary or unlawful interference and in determining whether an interference is to be so characterised it may be appropriate to consider, among other matters, democratic necessities such as are listed in article 8(2) of the European Convention.  Both articles therefore may require a form of balancing exercise and the verbal differences should not be heavily stressed.  Nevertheless a consequence of the differences is that comments and opinions of the Human Rights Committee of the United Nations on article 17 of the International Covenant are a more direct guide to the interpretation of article 14 of the Hong Kong Bill than decisions of the European Court of Human Rights and reports of the European Commission of Human Rights.

 

37. The Human Rights Committee, to assist States parties to the International Covenant in fulfilling their reporting obligations, has issued General Comments based on its experience in examining reports.  General Comment 16 relates to article 17 of the International Covenant and is to be found in the General Assembly Official Records, 43rd Session, Supplement No. 40 (A 43/40) 1988, Annex VI.  In paragraphs 3 and 4 the Committee declares that in article 17 the term unlawful means that no interference can take place except in cases envisaged by the law.  Interference authorised by States can only take place on the basis of law, which itself must comply with the provisions, aims and objectives of the Covenant.  The expression arbitrary interference can also extend to interference provided for under the law.  The introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances.

 

38. That approach by the Committee is reflected in its Communication No. 305/1988, Hugo van Alphen v. The Netherlands (General Assembly Official Records, 45th Session, Supplement No. 40 (A/45/40) 1990).  The case concerned the seizure of documents from and the holding in custody of a solicitor arrested on suspicion of being an accessory to forgery and intentionally false income tax returns.  The Committee found that there had been a violation of article 9 (protection against arbitrary arrest or detention) but that sufficient evidence had not been submitted to show a violation of article 17.  The relevance of the case for present purposes is that the Committee said, albeit referring directly to article 9, that arbitrariness is not to be equated with "against the law" but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability.  This means, the Committee said, that a remand in custody pursuant to lawful arrest must not only be lawful but reasonable in all the circumstances.

 

39. For the purpose of disposing of the present appeal their Lordships will assume, without deciding, that the approach of the Human Rights Committee to the two concepts is right and applicable to article 14 of the Hong Kong Bill.  They add only that the relevant aim of the Covenant is to preserve the integrity of the home; and that, as Mr. Pannick Q.C. for the respondents accepted, this must include the grounds or curtilage forming part of the home, although no doubt the circumstance that the actual living quarters are not interfered with may in some cases have a bearing on whether an interference is arbitrary or unlawful.

 

 

40. The reason for proceeding by way of assumption rather than decision is that the present case touches on far-reaching issues.  Within a few days the structure of the Hong Kong judicial system is to change.  It is inappropriate for their Lordships to offer opinions on issues which may well in future cases fall to the Hong Kong courts to resolve, unless such opinions are necessary for the disposal of the case before the Board.

 

Applying the Principles

 

41. The Crown Lands Resumption Ordinance of the Colony of Hong Kong contains provisions of a singularly sweeping and on their face Draconian nature.  By section 3, simply, "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."  By section 19 a notice to resume any land stating that the land is required for a public purpose is conclusive evidence that the resumption is for a public purpose.  Arguably these provisions may owe something to the facts that the Crown has been the universal landlord in Hong Kong and that Crown leases have had a common form provision empowering Her Majesty to resume at valuation at any time on three months' notice.  It was not that contractual power, however, which was relied on in the present instance, and their Lordships need not enter into the far-reaching question whether that contractual power is accompanied by public law duties.

 

42. The judgment of the Court of Appeal in this case and the judgment of a Full Bench of the High Court in the earlier K.O.Y. case depend ultimately on the ideas that to superimpose on the statutory language requirements apt to lead to protracted exchanges or something akin to a public inquiry would be to frustrate the purposes of the Ordinance; and that to take away for public purposes all or some of a person's home is neither arbitrary nor unlawful if monetary compensation is furnished.  Their Lordships are not to be taken as endorsing this approach.  So far as it invokes a kind of expressio unius argument - derived from the presence in the Crown Lands Resumption Ordinance, the Town Planning Ordinance and the Roads (Works, Use and Compensation) Ordinance of limited express rights to be heard -it may not be reconcilable with Doody, where a somewhat similar argument was rejected and the natural justice principle of supplementation applied.  So far as it invokes practical inconvenience, the opportunity of response to official arguments which the appellant seeks might seem a modest enough request.

 

43. On neither side had counsel discovered any authority in any jurisdiction examining whether the availability of compensation means  that  a  compulsory  acquisition  is not arbitrary or unlawful. Their Lordships make no such assumption.  They do recognise that, in applying section 3 of the Hong Kong Bill of Rights Ordinance, to hold that pre-existing legislation has been repealed, even pro tanto, must often be a more drastic and less constructive course than construing it consistently with the Bill of Rights.  Accepting that as far as reasonably possible a court in applying article 14 of the Hong Kong Bill of Rights should confine itself to the concrete case before it (cf. Hakansson v. Sweden (1990) 13 E.H.R.R. 1, 11), they are not willing to reject the conclusion that section 3 of the Resumption Ordinance should now be construed, at least when the compulsory acquisition of a home or part of a home is at stake, to require a fair procedure including a reasonable opportunity of objection.

 

44. Where the appellant's case clearly breaks down, in their Lordships' view, is on the particular facts.  The appellant by her solicitors sent in a written objection and asked for its consideration by the Executive Council.  On the evidence it was so considered.  The appellant was told that the answers of officials to her objection would also be put before the Executive Council.  She was given an opportunity to raise any further questions.  In the event she raised none, except for a request for a plan, which was met.  Some five months later the decision of which she complains was made.  Agreeing in substance with the Court of Appeal on this point, their Lordships consider that she had a reasonable opportunity to ask for more, of which she and her advisers did not avail themselves.  For this reason they see nothing unfair, arbitrary or unlawful in the procedure followed and have humbly advised Her Majesty that the appeal should be dismissed with costs.

 

© CROWN COPYRIGHT as at the date of judgment.