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The Marauders Set to Undermine the Legal System


 

By Henry Litton

There was a time, not that long ago, when national leaders in Britain had a "Euro-centric" view of the world. They referred to this part of the world as "the Far East". Sir Harold Macmillan, former British Prime Minister, in a speech delivered in the South African Parliament in February 1960, said this: "Two thousand years ago, the whole of the civilized world was comprised within the confines of the Roman Empire." This was not said out of ignorance. He must have known that, two thousand years ago, highly evolved, highly civilised communities existed globally, some of them way beyond the confines of the Roman Empire. It was a habit of mind that impelled such utterance, springing from a Euro-centric view of the world.

Henry Litton, a former Judge of the Court of Final Appeal, delivers a speech at the University of Hong Kong on November 7, 2017. Photo: Alvin Lum

Does this habit of mind prevail today? I cannot answer that as a general question. My focus is much narrower, confined to the law as it evolved through the judgements of the higher courts: And there I see a most disturbing trend, one tending to embrace "European jurisprudence" as part of our law. This is contrary to what is laid down as the legal system for the Hong Kong SAR under the Sino-British Joint Declaration and the Basic Law.

It is not a trend which I would expect the Hong Kong media to have picked up, for this reason: it goes hand in hand with another trend: the tendency in some of the higher courts to give judgments which are convoluted, obscure, and bloated to absurd length.

A sure way to avoid public criticism is to make statements so opaque and so long that they simply confound the critic. Apart from "I don't understand this" what else can one say?

I do not suggest that courts have set out deliberately to achieve this result. But this is the effect of slowing these two trends to run rampant, like twin marauders. It is the outcome to judges kowtowing to the arguments of counsel who, time and time again, construct monumental points based on the flimsiest of foundations. And if counsel spice their arguments with citations from European sources, say, judgements of the European Court of Human Right, judges feel somehow obliged to deal with them. Obscurity is piled on obscurity. Who today has the time to read, study and try to understand a 60-page judgement, stuffed with mind-numbing citations, dogma, theories and legal niceties? And I would add, impossible to translate into Chinese? The result is a legal system divorced from the community it is supposed to serve: belying the words of the Chief Justice in his speech at the Opening of the Legal Year: "The purpose of the law is to facilitate the functioning of a society……and to achieve a sense of mutual respect and harmony……"

European Jurisprudence

The law as laid down for the Hong Kong SAR is the common law: Article 8 of the Basic Law. It is the bedrock of the "capitalist system and way of life" of the Region, as provided for in Article 5.

These key provisions of the Basic Law follow faithfully the Sino-British Joint Declaration of December 1983, which settled the future of Hong Kong for 50 years as from 1 July 1997. At the time when the two sovereign powers were negotiating over the future of Hong Kong, in early 1983, the common law would have been seen by the Chinese team for what it was: a rational system, based largely on common sense, readily understood, which had served the community well for more than a century. So it was taken on trust, and brought into the Basic law as the legal system for the Hong Kong SAR.

The common law system as it has evolved in the English-speaking world is very different from the systems of law prevailing in the various European countries.

European jurisprudence is unquestionably "foreign law". Section 59 of the Evidence Ordinance says that where a party relies on foreign law he must "prove its content as facts" through expert evidence. In other words, European jurisprudence cannot, willy-nilly be "transplanted" as if it were part of Hong Kong domestic law.

There has been a creeping tendency, over many years, to "transplant" European human rights jurisprudence into the Hong Kong legal system, in total disregard for section 59. Time precludes an examination of how this has come abou t- that story will have to be examined elsewhere.

What can be said is that this creeping trend has now become a tidal wave. It has overwhelmed parts of the legal system, with disastrous results. The responsibility for this must be laid at the door of the legal profession, with the courts lamely following.

The Tidal Wave

Take for instance the Court of Appeal's judgement in Hysan Development Co. Ltd & Others v Town Planning Board [CACV 232/2012], which illustrates the culmination of this trend.

The matter began life as a routine piece of business: a determination of objections to the draft outline zoning plan (OZP) for Wanchai and Causeway Bay prepared by the Town Planning Board. It was taken on judicial review to the Court of First Instance and then to the Court of Appeal, which gave judgement in November 2014. It went ultimately to the Court of Final Appeal - where the outcome is quite extraordinary, as will be shown later on.

There were only two basic town planning issues: air ventilation in a high-rise built up area, and circulation of pedestrians in the streets below.

Naturally the Board relied on expert analyses and reports for their determination as to what restrictions on building should, in the future, be imposed for the general good, having regard, within reason, to the landowner's property interests. These were not spheres in which courts of law have particular expertise. if confined to the real issues in the case, it is difficult to imagine what there was to argue about in court.

This is what Mr. Justice Reyes at First Instance said about counsel's presentation of the case: "[Counsel's] written submission run for nearly 100 pages in what is…a jumbled, rambling and repetitive manner. In practical terms, it is impossible to deal with every one of the myriad tiny points to be found in [counsel's] written submissions…."

Later on in the same judgement Mr. Justice Reyes reminded counsel of their duty under Rule 1A of the Rules of the High Court in these terms: "......both sides come under a duty to assist the Court (pursuant to RHC Order 1A) to understand the real issues in a case and to resolve [them] in an expeditious manner. Both sides are under a duty to present their sides of a case in a fair, succinct and rigorous manner. As noted earlier, Hysan's written submissions in this case were long and rambling. I did not find them helpful in crystallizing the true issues between the parties…… Hysan submitted 8 level-arch files of authorities. That was excessive…"

This could not have been a clearer admonition to the legal profession by a High Court Judge. But counsel seemed totally unabashed. In the Court of Appeal, woven into counsel's submissions were numerous cases decided by the European Court of Human Rights:Sporrang & Lonnwroth v Sweden, Chapman v United Kingdom, Marckx v Belgium, JA Dye (Oxford) Ltd v United Kingdom, Jahn v Germany etc. The Court of Appeal felt that "deference" was owed to counsel. So these cases were discussed at length. They concerned Article 1 of the First Protocol of the European Convention on Human Rights: which has no application whatsoever in Hong Kong. One of those cases - Chapman v United Kingdom - dealt with an enforcement notice against the caravan of a gypsy.

What on earth has a gypsy caravan parked in the green and pleasant fields of rural England got to do with problems of air ventilation and pedestrian traffic in Wanchai? The Court of Appeal said (in para. 86) that the Chapman case did not advance counsel's argument further: neither did any of the other cases referred to above. Why then discuss them at all?

One is told, in para. 81, that the cases of Sporrang & Lonnwroth v Sweden involved an analysis of Article 1 of the First Protocol of the European Convention and that the Strasbourg Court had held that the Article "comprised three distinct rules". The Court of Appeal then went into an examination of those three rules.

What have those European "rules" got to do with town planning in Hong Kong?

The Court apparently found nothing ironic in its concluding statement: "We do not agree with [counsel] that in the present context one can simply transplant the Sporrang jurisprudence to Hong Kong without regard to the material difference between the wording of Article 1 of the First Protocol and Article 105 of the Basic Law…"

In yet another town planning case which went to the High Court on judicial review- Town Planning Board v Oriental Generation Ltd [CACV 127/2012]- the Court of Appeal (differently constituted from Hysan Development Co. Ltd) made the same statement: that it was not "appropriate" to do a "wholesale transplant" of the European jurisprudence on Article 1 of the First Protocol "without regard to the material differences" in the separate systems of law.

Wholesale transplant? Where, under the constitutional arrangement for the Hong Kong SAR, does the idea of "transplanting" European jurisprudence into our law come from? Article 18 of the Basic Law cannot be more explicit: "The law in force in the HKSAR shall be this Law [the Basic Law], the laws previously in force in Hong Kong as provided for in Article 8 of this Law, and the laws enacted by the legislature of the Region". Full stop. And Article 8 applies the common law, not European law.

As will be seen later, this "transplanting" of European jurisprudence is not confined to the Court of Appeal. It has reached the highest court in the land: the Court of Final Appeal. The result of this development, and of an allied accumulation of arcane scholarship, is that a perfectly rational system of town planning, which has operated smoothly for decades in Hong Kong, has become entangled in bewildering complexity. It has caused immense delay in the whole process, which necessarily means higher development cost. Simply look at the Oriental Generationcase. This concerned the redevelopment of the old Kai Tak Mansion in Ngau Tau Kok: a well-known local landmark. The matter began in February 2012 when the Town Planning Board rejected the landowner's objections to the draft OZP for the area. The case terminated with the Court of Final Appeal's judgment in September last year, when that the Court sent the matter back to the Board for reconsideration of its determination. Back to square one. More than four years spent in litigation and perhaps many more to come. Tens of millions expended in legal fees. To what ends? How has this improved public administration of promoted confidence in the law?

How a Sensible Town Planning Regime Got Wrecked by the Courts

The urbanized parts of Hong Kong constitute one of the most crowded places on earth.

27. To safeguard the health, safety, convenience and general welfare of the community there must, it goes without saying, be proper town planning. That, in effect, is what section 3(1) of the Town Planning Ordinance provides. This is entrusted to a statutory board, the Town Planning Board, which discharges its function by preparing from time to time outline zoning plans (OZPs) for such areas of the Region as the Chief Executive may direct. The first step is for the Board to publish a draft plan for the area concerned, showing the layout, the type of buildings and other conditions as best calculated to achieve the broad objects of the Ordinance.

The Board is composed of professionals, civil servants and academics with experience in town planning and related disciplines.

The Ordinance sets out procedures for landowners and others to raise objections; it requires the Board to hold sittings at which those parties might be heard. There might be a large number of objectors, with perhaps conflicting interests: a building height limitation imposed on, say, landowner X may well be welcomed by land-owner Y. A restriction on development which might improve the urban environment for the general good- say enlarged pavements might cut into the pocket of a land-owner. So the Board's task is to weigh competing interests and come to a reasonable view, always bearing in mind the overall objective of the statutory scheme: to safeguard the health, safety, convenience and general welfare of the community.

The draft plan, amended perhaps in consequence of the objections raised, then goes to the Chief Executive in Council. If approved, the plan becomes the standard for the exercise of powers and discretions by public officers in relation to the matters within the district concerned. This is a rational, sensible and democratic process.

The Town Planning Ordinance was amended in important respects back in 1988. That was nearly 30 years ago. Since that time countless real estate developments have taken place under the regime of the Ordinance, without challenge to the legality of the statutory scheme as such, until quite recently. I was for many years, chairman of the Town Planning Appeal Board. That was more than 20 years ago. I saw the workings of the system at close quarters. Here was the common law in action: serving the community effectively, without causing delay. It enabled Hong Kong's urban renewal to proceed at a reasonable pace.

TURBO TOP: Spearhead of Lawyers' Assault

A sea-change occurred in 2011 when Turbo Top Ltd, a wholly-owned subsidiary of Cheung Kong Holdings, objected to the OZP for the area which included the site of Cheung Kong Centre: formerly the site of the old Hilton Hotel, Beaconsfield House and the Garden Road public carpark. The draft OZP required, among other matters, the provision of 800 public car-parking spaces in any future redevelopment of the site. Cheung Kong objected to the conditions imposed by the Town Planning Board, at a public meeting held for this purpose. There were, of course, other parties at the hearing, some of whom might well have supported the need for public car-parking spaces in the area. At any rate, Cheung Kong's objections were rejected by the Board. The matter then went to the High Court on judicial review.

When lawyers got involved, Cheung Kong's case changed course. It was no longer objections to the planning conditions as such. Their case as presented by counsel went to the heart of the statutory scheme for town planning in Hong Kong. Counsel's argument was to this effect: that the power given to the Town Planning Board by sections 3(1)(a) and 4(1) of the Ordinance to prepare plans for the "layout of any area" did not allow the Board to "micro-manage" future development: hence the requirement of the 800 car-parking spaces was, as counsel submitted, beyond the power of the Board to prescribe. This argument was rejected by Mr. Justice Reyes. He applied straight-forward common law principles and, in an admirably lucid judgement, held that the Ordinance, properly construed, allowed the Board to impose the car-parking requirement.

Pausing here, it seems odd that Cheung Kong Holdings, one of the leading real estate developers in Hong Kong, should have launched an attack on the statutory scheme as such. Had the point taken by their lawyers succeeded, it would have required a radical revision of the Ordinance by the Legislative Council; alternatively, scores of OZPs would have needed amendment. In any case, hundreds of sites in Hong Kong would have been affected, including doubtless Cheung Kong's own sites. Building projects in the pipeline would have been much delayed.

What benefits did the lawyers think they were seeking to achieve for their client? There was in fact no appeal against Mr. Justice Reyes' judgement. Might this be, perhaps, because the Cheung Kong management woke up to realities and instructed their lawyers not to prolong the legal game by taking the matter on appeal?

The Assault Intensifies

Far from heeding Mr. Justice Reyes' admonition about lawyers' duty to the community, the assault on the statutory regime for town planning intensified.

Between November 2010 and October 2011 the town planning board published successive draft OZPs for the Ngau Tau Kok and Kowloon Bay areas. As mentioned earlier, these affected land on which Kai Tak Mansion stood. This was a dilapidated seven-storeyed building with multiple residential flats and retail shops on the ground floor. It stood on a large site, over 5700 sq.m. It was ripe for redevelopment. Adjoining the site were listed buildings and a primary school, which made redevelopment difficult.

The developers submitted plans which consisted of two residential towers of 55 storeys, standing on a podium with 7 levels. The plans were rejected by the Building Authority for, among other reasons, non-compliance with the OZP.

The restrictions on the site imposed by the OZP were as follows: (a) building height restriction, (b) a 10 m. non-building area along parts of the boundary, and (c) a 20 m. building gap for the middle of the site.

Following objections to the restrictions, there was much dialogue between the developers and the Town Planning Board. Eventually the Board decided not to relax those restrictions. This then led to the developers' application to the High Court for judicial review: Oriental Generation Ltd v Town Planning Board (HCAL62/2011) as referred to earlier.

The main issue was the height restriction.

The Planning Department's policy was dictated by what was called the "stepped building height concept", with building height in the area progressing eastwards and northwards in "bands", from Kowloon Bay to the Jordan Valley, preserving the Kowloon ridge-line from certain vantage points of view. Most people, I imagine, would agree that for the community as a whole, it is important that views of Kowloon Peak and Lion's Rock, and the sky-line in between, should not be obstructed by high-rise buildings, when seen from across the harbour. How to achieve this is not a matter of law, but of architecture and planning. Lawyers have nothing to contribute to the debate. As Mr. Justice Reyes at First Instance rightly said, how best to apply the stepped building height concept to particular "bands" within the OZP is a matter of aesthetic judgment. No law was involved.

But there was a twist to the case. Before Mr. Justice Reyes, counsel for the Board accepted that, as urged by counsel for the owner, there was a so-called principle: that a building height restriction should not prevent a developer from making full use of plot ratio and gross floor area available to the site. And there was no material before the Board to counter this principle. So the judicial review succeeded. The Board's decision was quashed and the matter was sent back to them for reconsideration.

Pausing here: it is bizarre that counsel for the Board (instructed by the Department of Justice) should have accepted as a matter of principle that a developer had a right to make full use of the plot ratio and of the gross floor area available to the site, come what may. Where in the Town Planning Ordinance is this over-riding right entrenched? The Board's mandate is to promote the health, safety, convenience and general welfare of the community. The developer is of course part of the community and the Board must, of course, bear in the mind the economic interests of the developer; hence the developers' ability to utilize the plot ratio and gross floor area for the site is a relevant consideration. No more. To erect this into a matter of inflexible principle is plainly wrong. The Judge, it seems, did not fully accept counsel's concession. In para. 76 of his judgement Reyes J said: "...to impose the burden of a ...restriction on a site, such decision must be backed up by cogent evidence that the measure can reasonably be regarded as necessary for achieving a particular planning objective. Obviously, in the assessment of what is reasonably necessary, a wide margin of appreciation must be afforded to the Board. Nonetheless, the greater the restriction of property rights being proposed, the greater must be the cogency of the evidence required to justify the Board's decision."

This statement, as formulated by the Judge, embodies classic common law principles. It is a variance with the concession made by counsel for the Board.

Further Development

The matter was not sent back to the Town Planning Board. Instead it went on appeal. Two and a half year later, the Court of Appeal gave judgement (13 November 2014). That judgement comes to 52 pages (156 paragraphs).

Hysan Development Co. Ltd v Town Planning Board (HCAL 38/2011)

To understand the Court of Appeal's judgment in the Kai Tak Mansion case, it is necessary to dig deeper and to go back to the Hysan Development Co. Ltd case. This, as mentioned earlier, concerned the OZPs for Causeway Bay and Wanchai. There the Town Planning Board had imposed various restrictions on the development, as noted in the OZPs. The Board had maintained those restrictions in the plan despite the owners' objections. These restrictions were for better air ventilation and pedestrian circulation in those crowded areas: objectives clearly within the scope of the Town Planning Ordinance.

The Board had a huge amount of studies on wind circulation and pedestrian traffic before it resolved to maintain those restrictions, despite Hysan's objections.

The matter, as mentioned earlier, was taken to the High Court on judicial review. The Judge categorized counsel's written submissions as jumbled, rambling and repetitious. Hysan's case as presented to the Court was that the Board had acted beyond its powers, was "unreasonable, irrational, arbitrary, its decision based on erroneous appreciation of the facts"; and it had acted "unfairly and had abdicated the proper exercise of its statutory duties". Seven deadly sins!

How many ways are there to skin a cat? If the Board had exercised its statutory duties properly, if it had not "abdicated" them, how could the Board be said to be unreasonable, irrational, arbitrary, etc? The Judge, in a clearly formulated judgment, dealt with counsel's arguments. At the end of his judgement Reyes J. said "...[it] will not help the Court for the same points to be restated in numerous ways. No amount of repetition or re-packaging will improve invalid points…"

Except for one minor issue, Hysan's application for relief on judicial review was dismissed.

Hysan's Appeal: Counsel Cranks up the Rhetoric

Hysan appealed against Mr. Justice Reyes' judgement to the Court of Appeal. There senior counsel raised an argument which, at First Instance, he said he was not pursuing. The argument was to this effect that the restrictions imposed on the sites constituted a "deprivation of property" contrary to Articles 6 and 105 of the Basic Law: thereby cranking up the argument to a constitutional level- far removed from the real issues: air ventilation and amenities for pedestrians in crowded Wan Chai.

Articles 6 & 105 of the Basic Law

These provide as follows:

"Article 6: The Hong Kong Special Administrative Region shall protect the right of private ownership of property in accordance with law.

Article 105: The Hong Kong Special Administrative Region shall, in accordance with law, protect the right of individuals and legal persons to the acquisition, use, disposal and inheritance of property and their right to compensation for lawful deprivation of their property."

As can be seen, the obligations in Articles 6 and 105 fall on the Hong Kong Special Administrative Region. The Town Planning Board is not the Hong Kong SAR. It is a very small cog in the machinery of government of the Hong Kong SAR.

The Basic Law is the constitutional instrument for Hong Kong as a whole: as such it sets the norms for the laws and institutions governing the Special Administrative Region. It does not act as a set of administrative rules for the small organs of the government.

Under the Basic Law, many rights enjoyed by Hong Kong residents are guaranteed. Among these are rights of property. The laws of Hong Kong, as required by the Basic Law, must protect those rights. That is the effect of the various Articles in the Basic Law: including Articles 6 and 105.

Property rights are, of course, protected under the common. It can be said that property rights are the darlings of the common law. Hence, you can sue your neighbour for trespass if he dares set one foot on your land without permission, irrespective of damage.

Articles 6 and 105 concern property. Full stop. A car is a property, a bottle of whiskey is property. So is a gun or a live chicken. If the keeping or use of such things need to be regulated, that would be done at an administrative level, through laws passed by legislature, or by subsidiary legislation. A constitutional instrument such as the Basic Law regulates matters at a far higher level.

Plainly, Articles 6 and 105 were not designed to regulate the conduct of a statutory board, such as Town Planning Board, which has its own regulating law, the Town Planning Ordinance.

Obviously, counsel for Hysan was right when, before Mr. Justice Reyes, he expressly disavowed reliance on Articles 6 and 105 of the Basic Law. As mentioned earlier, the common law principle on which Mr. Justice Reyes based his judgment was simply this: the greater the restriction of property rights, the stronger must be the evidence required to justify the Board's decision. This places property owners in a highly favourable position, when their interests conflict with those of the public on matters such as air ventilation and pedestrian circulation. So why would counsel wish to trump the common law with something more exotic?

Yet that precisely was what counsel attempted to do in the Court of Appeal. Over 16 pages, covering paras. 43 to 89 of its judgment, we find the Court of Appeal dealing with counsel's arguments based upon Articles 6 and 105, and the cases mentioned earlier, the Swedish case, the German case, the case involving the gypsy caravan, etc. Discussion which went nowhere, as the Court of Appeal itself acknowledged. At para. 87 it said:"...there is no systemic challenge against the Town Planning Ordinance before us. Thus, strictly speaking, it is not necessary for us to decide whether the European jurisprudence on fair balance (examined on a systemic level) is inherent in the concept of "law" under our Article 105…".

Why, then, discuss it at all?

In the end the Court of Appeal agreed with Mr. Justice Reyes: the mere fact that zoning restrictions imposed in the public interest will lead to diminution of property values will not, without more, amount to an unlawful deprivation of property contrary to the Basic Law. A landowner takes property subject to an implied condition that, for the public good, the Government may by regulation limit the uses to which such land can be put in the future.

This is plain common sense. Just as the Government might regulate the use of land, so it might regulate the use of cars or guns, or the keeping of live chicken, or sugar and softdrinks, or other aspects of "property"- subject always to the restraints imposed by common law principles. And those principles are high in human rights contents.

Court of Final Appeal

Two cases: Oriental Generation (the Kai Tak Mansion) case and Hysan Development went on further appeal to the Court of Final Appeal. They were heard together. By this time, the questions of air ventilation and pedestrian traffic were long forgotten. The appeals turned on purely academic analyses, involving numerous "authorities". Judgment was delivered in September 2016.

The CFA held that the two Courts of Appeal in those two cases had got it wrong: Articles 6 and 105 of the Basic Law were engaged. This then brought in numerous cases on European human rights, and analysis of principles in a European context.

The outcome was that those cases were sent back to the Town Planning Board with instructions to consider their determinations afresh, in accordance with the judgement of the Court of Final Appeal.

The Board members must be scratching their heads in total bewilderment. What they will make of that judgment? It is 144 paragraphs long. Filled with references to European jurisprudence and discussion of European human right laws.

This is how the Court of Final Appeal introduced the issue: "Hysan and Oriental Generation had both unsuccessfully contended...that the planning restrictions represented a disproportionate and therefore constitutional infringement of their property rights in contravention of Article 6 and 105 of the Basic Law. Although they had succeeded in having the Town Planning Board's decisions quashed on traditional judicial review grounds, they sought to leave to appeal to this Court on the constitutional issues with a view to ensuring that, when reconsidering its decisions regarding the restrictions, the Board would have the guidance of this Court's judgment as to the relevance and application of Articles 6 and 105".

"Guidance" on Articles 6 and 105? Why on earth does the Town Planning Board need such guidance?

The Issue in a nutshell

Let us just pause here. So the issue, in a nutshell, is whether those planning restrictions represented a disproportionate infringement of the landowners' rights: an issue easily resolved - and for decades has been resolved - under common law principles. So why on earth elevate to the constitutional realm?

One reads the Court of Final Appeal's judgement with a sense of shock.

Contrary to the judgment of six Justices of Appeal and a Judge of the Court of First Instance, the CFA concluded that, in deciding whether the planning restrictions imposed by the Town Planning Board were "disproportionate", Articles 6 and 105 of the Basic Law were engaged. This then subjected those restrictions to what the Court of Final Appeal called a "proportionality analysis", involving the study and application of European jurisprudence.

This is one of the three questions the CFA put to itself: "...what standards or tests should the Court apply in conducting a proportionality assessment in a case like the present, and in this context, is the jurisprudence of the European Court of Human Rights on Article 1 of Protocol 1 of the European Convention on Human Rights of assistance?"

The Court answered the question by holding: Yes, the jurisprudence of the European Court of Human Rights is of assistance and further, Yes, the standards or tests of that Court are relevant in Hong Kong.

The Final Twist in the Tale

But - and here is the final twist in the tale - there were no "extant planning restrictions" which fell to be considered by the Court of Final Appeal, as the Court itself acknowledged, since the landowners had succeeded in the Court of Appeal in quashing the Board's decision on traditional common law grounds. So the entire judgment of the Court of Final Appeal is academic.

How is the Board supposed now to act differently, in light of the CFA's judgment? Take this passage (para. 126) where the Court seemed to approve of the approach taken by Mr. Justice Reyes at First Instance: "As Reyes J pointed out in his Oriental Generation judgement, planning is a holistic process, involving balancing numerous factors. Draft OZPs and individual planning restrictions are the product of a decision-making process carried out by machinery created by statute and designed to ensure consideration of competing views after consultation with the public and with the parties affected, with the benefit of input from relevant experts. Planning decisions are made with entire districts, and not just the parties' sites in view. The system includes as part of its design, the possibility of an aggrieved party seeking administrative law remedies if material flaws occur in the way the Board arrives at its decisions....".

The Court of Final Appeal then said, in effect, that it would take a case near the extreme end of the spectrum - where the Board's decision was "manifestly without reasonable foundation" - before a court of law could interfere.

If there were "material flaws" in the Board's approach to the case, they had been corrected in the Court of Appeal. Mr. Justice Reyes applied common law principles in handling the case. Why did the CFA not simply uphold his approach, to leave the law clear and intact?

The final irony is this: The Court of Final Appeal, in its concluding para. 142, said this: "It is considered to be highly unlikely the Board decisions imposing planning restrictions arrived at lawfully and in conformity with the principles of traditional judicial review, would be susceptible to constitutional review unless the measures are exceptionally unreasonable". So what on earth was the point of it at all?

Not only was it judgment futile in practice, incomprehensible to the ordinary person, and impossible to translate into Chinese, it also grievously harms Hong Kong's high degree of autonomy, as I shall demonstrate below.

Hong Kong's High Degree of Autonomy

Hong Kong's high degree of autonomy depends largely upon this fact: that domestic matters are regulated solely by the laws of Hong Kong, and, when disputes arise, they are determined solely by the courts of the Region. What restrictions might lawfully be imposed on the use of land, through the town planning process, is clearly a domestic matter. The organs of the Central Government have no part to play.

When it comes to constitutional affairs, the situation is different. The final power of interpretation of the Basic Law rests with the Standing Committee of the National People's Congress: Article 158 of the Basic Law.

So long as matters such as restrictions on the use of land come under a local statute the Standing Committee has no say. But if it is erected into a constitutional issue, then interpretation of the Basic Law is involved: such as Articles 6 and 105 in this case. Potentially this brings the case within the jurisdiction of the Standing Committee of the NPC. What if the Standing Committee view Articles 6 and 105 in the same way as the six Justices of Appeal and Mr. Justice Reyes, and disagrees with the Court of Final Appeal's interpretation? To this extent the Court of Final Appeal has put a dent into Hong Kong's high degree of autonomy, in a very important area of Hong Kong's economic and social life. As mentioned earlier, those Articles in the Basic Law deal not only with landed property, but any property.

Transplanting Foreign Law by Creep

The Court of Final Appeal appears to experience no discomfort in its approach to the case: that wealthy land-owning corporations should use European human rights jurisprudence to trump the interests of the ordinary citizen of Hong Kong in the use of the streets of Wanchai and Causeway Bay, downgrading their rights to clean air and safe streets.

And the danger is this: What, on any view, must be regarded as a highly questionable approach by that Court might very quickly be treated as accepted Hong Kong jurisprudence. This can be seen in a very recent case in the CFA: Kwok Cheuk Kin v Secretary for Constitutional and Mainland Affairs FACV12/2016, 11 July 2017. There the Court referred to the "recent study of the proportionality analysis in Hysan" and said that it involved four steps - three steps being adopted from European jurisprudence, and one added by the Court itself- as if such "study" were routine business of the Court. Its radical departure from the basic constitutional arrangement for Hong Kong - Article 8 of the Basic Law - can easily get submerged by its own rhetoric.

My Sad Conclusion

A rational and workable system of town planning, based upon well known common law principles, has now been thrown into disarray through the Court's acceptance of lawyers' sophistry. The cost to the community is inestimable. its impact is likely to be widely felt.

European jurisprudence in fields not limited to town planning has now been "transplanted" as part of the laws of Hong Kong, contrary to the provisions of the Basic Law. The Court of Final Appeal, in the name of constitutionality, has acted unconstitutionally.

Even more citations by lawyers of European case law is now to be expected. The legal system will get even more bloated as a result.

The Court of Final Appeal had the opportunity to endorse the robust approach to town planning in Mr. Justice Reyes' judgments, giving leadership in this field of the law: with emphasis on simplicity and clarity. This would have put the law in tune with the tempo of the age: with Hong Kong as an efficient effective modern financial centre of the world. Instead the Judiciary is seen here as performing its own rituals, far removed from people's lives, dealing in theories and polemics, caring nothing for the real concerns of the community.

Henry Litton is a former Judge of the Court of Final Appeal. This is his speech deliver at the University of Hong Kong on November 7, 2017.


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