FACV 5/2020

IN THE COURT OF FINAL APPEAL OF

THE HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL APPEAL NO.5 OF 2020

(ON APPEAL FROM CACV NO.150 OF 2017)

___________

BETWEEN

CHAN KA LAM

Appellant

AND

THE COUNTRY AND MARINE PARKS AUTHORITY

Respondent

_______________________________________

THE RESPONDENT’S PRINTED CASE

_______________________________________

2

A. INTRODUCTION

1. The Country Parks Ordinance (Cap 208) (“CPO”) vests the

Country and Marine Parks Authority (“the Authority”) with

control and management of country parks and the duty of

recommending areas to the Chief Executive (“CE”) for

country park designation. Section 3(2) of the CPO establishes

the Director of Agriculture, Fisheries and Conservation as the

Authority.

2. The Authority is responsible for a sizeable portion of territory.

Together with designated “special areas”, 1 country parks

cover some 443 out of a total of 1108 square kilometres of

Hong Kong land.

3. This appeal concerns the extent to which the Authority must

consult the Country and Marine Parks Board (“the Board”),

a second body established under the CPO, in discharging its

wide-ranging functions.

4. The two Certified Questions are:2

(1) Question 1: on the true construction of s.5(1)(b) of the

CPO, in what circumstances does the Authority come

under a duty to consult the Board, and thus enable the

1 Pursuant to s.24 CPO. 2 Order of the Appeal Committee dated 12 May 2020. [A/14/128]

3

Board to consider and advise the Authority, on the

policy and programmes prepared by the Authority in

respect of country parks including proposed country

parks?

(2) Question 2: in particular, to what extent, if any, does

the Authority come under a duty to consult the Board,

and thus to enable the Board to consider and advise the

Authority, regarding the Authority’s assessments and

decisions regarding the suitability or otherwise of

designating existing enclaves as country park pursuant

to Working Paper WP/LMPB/6/2011 (“2011

Working Paper”)?

5. The Appellant is an environmental activist who sought

judicial review of the Authority’s December 2013 decision to

not recommend six New Territories enclaves3 for country

park designation.4 She contends that the Authority failed to

consult the Board pursuant to s.5(1)(b) of the CPO when

assessing their suitability.

3 Namely Hoi Ha, Pak Lap, So Lo Pun, To Kwa Peng, Pak Tam Au and

Tin Fu Tsai (“the 6 Enclaves”). An enclave is an area contiguous to a

country park but is not part of it. 4 This decision is referred to as “Decision 1” in the CFI Judgment. The

judicial review application against “Decision 2” was allowed: CFI

Judgment §§49-134. There is no appeal by the Authority on that matter. [A/2/23-61]

4

6. The circumstances of the Authority’s non-recommendation

decision are undisputed:

(1) In response to concerns over enclave protection, the

Authority prepared the 2011 Working Paper, setting

out assessment criteria for the suitability of enclaves

for country park designation. The Board was consulted

and endorsed the criteria: CFI Judgment §§11-17.

(2) The Authority applied the 2011 criteria in the

individual assessments of the suitability of some 54

enclaves for inclusion into country parks. Having

assessed the 6 Enclaves in this process, the Authority

found them unsuitable for incorporation into their

surrounding country parks. As a result, the Authority

decided not to recommend the 6 Enclaves to the CE for

country park designation.

(3) The Authority did not consult the Board on the

assessments: CFI Judgment §§18-23. The Authority

likewise did not consult the Board on the non-

recommendation decisions.

7. The central question in this appeal is the proper construction

of CPO s.5(1)(b), which provides that the Board shall

“consider and…advise the Authority on, the policy and

[A/2/10-12]

[A/2/13-14]

5

programmes prepared by the Authority in respect of country

parks and special areas…”.

8. In summary, the Authority submits that:

(1) The words “policy and programmes” in s.5(1)(b)

concern principles and plans formulated to guide or

direct future actions in respect of country parks. They

are matters set at a general or systemic level that

provide a directive framework for the Authority’s

further individual acts.

(2) In the CPO context, policies or programmes stand at a

higher level of generality than specific decisions or

acts, such as those on the designation of particular

pieces of land for country parks or special areas.

Policies and programmes may guide or direct what

areas will be assessed, and by what criteria. But the

actual assessments are not themselves policies or

programmes on which the Board must be consulted.

(3) The Authority’s assessments of the 6 Enclaves merely

implemented the policy and programme contained in

the 2011 Working Paper. The assessments were fact-

specific executive acts and do not feature the essential

characteristics of a policy or programme. They do not

engage the s.5(1)(b) duty to consult.

6

(4) Further, in the s.5(1)(b) context the words “in respect

of” require that the principal purpose or subject matter

of the relevant policy or programme directly concern

country parks or special areas or areas proposed as such.

Policies or programmes only indirectly or incidentally

affecting a country park are not “in respect of” it.

(5) The assessments of the 6 Enclaves were not “in respect

of” country parks merely because the inclusion or non-

inclusion of the enclave areas might impact the

surrounding country park, in the necessary and obvious

sense that their inclusion or non-inclusion would affect

the size and composition of the surrounding park areas.

The focal purpose of the relevant assessments was the

protection of the enclave areas. They were therefore “in

respect of” enclaves rather than country parks.

9. The Appellant’s Printed Case proffers a novel and startling

interpretation of s.5(1)(b), by which the Authority must

consult the Board whenever it “proposes measure(s) in

respect of country parks or proposed country parks which

may have a significant impact or are otherwise important…

taking into account all relevant factors” (§6.1).

10. This was not run in the courts below and indeed completely

departs from the arguments based on which the Appeal

7

Committee formulated the Certified Questions. As analysed

below, this new case is anyway fundamentally unsound.

B. MATTER OF STATUTORY INTERPRETATION

11. Question 1 concerns when the Authority is duty-bound to

consult the Board. Question 2 concerns whether the specific

facts of this case fall within the Authority’s duty to consult.

Both questions turn on the proper interpretation of s.5(1)(b).

12. Section 5 provides:

“(1) There is hereby established a Country and

Marine Parks Board [i.e. the Board] which shall—

(a) act as a consultative body to advise the

Authority upon any matter referred to it by

the Authority;

(b) consider and to advise the Authority on,

the policy and programmes prepared by the

Authority in respect of country parks and special

areas, including proposed country parks and

special areas; and

(c) consider any objections that may be

lodged under section 11 or section 17.”

13. The Court of Appeal held that the Board’s duty to “consider

and to advise” the Authority under s.5(1)(b) entails a

8

corresponding duty on the Authority’s part to “consult” the

Board: CA Judgment §§29-47.

14. On this footing, s.5(1)(b) on its face sets three pre-conditions

for the Authority’s duty to consult the Board. First, there has

to be a policy/programme. Second, that policy/programme

must be one “prepared” by the Authority. Third, that

policy/programme must be prepared “in respect of” (proposed)

country parks or (proposed) special areas.

15. The essential sub-issues for both Certified Questions are

therefore:

(1) What do the words “policy and programmes”,

“prepared” and “in respect of” in s.5(1)(b) mean?

(2) Are the Authority’s assessments and recommendation

decisions on the inclusion or exclusion of enclaves

policies or programmes within s.5(1)(b)?

(3) If so, are such assessments and decisions “in respect of”

country parks?

[A/6/90-94]

9

C. PRINCIPLES OF STATUTORY INTERPRETATION

16. The Appellant proposes that the Court should answer the

Questions by “setting out a workable approach” to identifying

the circumstances in which the Authority must consult, and

that the question is not simply “what is a programme”:

Appellant’s Case §§3.20-3.21.

17. The Appellant then proceeds to wholly ignore the word

“programme” and its meaning in the rest of her argument:

Appellant’s Case §§4.1-4.8.

18. This is clearly the wrong approach to answering the Certified

Questions.

19. The settled approach to statutory construction is to engage the

specific words employed in a provision in the light of their

context, including the prevailing statutory purposes.

20. As Ma CJ held in Town Planning Board v Town Planning

Appeal Board5 §29:

“(1) In construing statutory provisions, the court does

not merely look at the relevant words. It construes the

relevant words having regard to their context and

purpose.

5 (2017) 20 HKCFAR 196.

10

(2) The context of the relevant statutory provision

should be taken in its widest sense and will of course

include the other provisions of the statute. It may also

be relevant in any given case to look at the history of

the relevant provisions.

(3) Ascertaining the purpose of the statutory provision

is obviously relevant, not only to help provide the

relevant context, but to give meaning to the words used.

In this latter respect, it is to be observed that often the

meaning of words by themselves will not be clear

unless regard is paid to context and purpose. Words

have to be construed but they must not be construed in

a vacuum.

(4) In ascertaining the purpose of a statutory provision,

the court adopts a flexible and open-minded

approach. The purpose may be clear from the provision

itself or it may be necessary to look at the Explanatory

Memorandum to the bill introducing the provision or a

ministerial or official statement may be utilised for this

purpose.” (our emphasis)

21. Words are given their natural and ordinary meaning unless

the context or purpose points to a different meaning, with

context and purpose to be considered alongside the express

wording from the start, and not merely at some later stage

when an ambiguity is thought to arise: Town Planning

Board;6 HKSAR v Lam Kwong Wai.7

22. A contextual and purposive approach does not mean that the

court can ignore the actual words used in a statute or distort

6 Ibid, §75. 7 (2006) 9 HKCFAR 574 at §63.

11

their plain meaning. The court is to ascertain the intention of

the legislature “as expressed in the language of the statute”:

Lam Kwong Wai;8 HKSAR v Cheung Kwun Yin.9

23. Since regard must always be paid to the particular words used

by the legislature in expressing its will, it is improper to

attribute to a provision a meaning which the language of the

statute, understood in the light of its context and purpose,

cannot bear: China Field Ltd v Appeal Tribunal (Buildings)

(No. 2);10 HKSAR v Fugro Geotechnical Services Ltd.11

24. All relevant provisions within a statute must be read together

as a purposive unity: Medical Council of Hong Kong v Chow

Siu Shek.12

25. In assessing the scope and effect of an Ordinance, the Chinese

text is generally of equal status as the English and must be

accorded substantial weight:

(1) S.10B of the Interpretation and General Clauses

Ordinance (“IGCO”) (Cap 1) provides that (a) the

English language text and the Chinese language text of

an Ordinance shall be equally authentic, and the

8 Supra, §63. 9 (2009) 12 HKCFAR 568 at §11. 10 (2009) 12 HKCFAR 342 at §36. 11 (2014) 17 HKCFAR 755 at §22. 12 (2000) 3 HKCFAR 144 at 154B-C.

12

Ordinance shall be construed accordingly (s.10B(1));

(b) the provisions of an Ordinance are presumed to

have the same meaning in each authentic text

(s.10B(2)); (c) where a comparison of the authentic

texts of an Ordinance discloses a difference of meaning

which the rules of statutory interpretation ordinarily

applicable do not resolve, the meaning which best

reconciles the texts, having regard to the object and

purposes of the Ordinance, shall be adopted (s.10B(3)).

(2) Contrary to Appellant’s Case §3.25, s.10B IGCO

plainly applies to legislation enacted before Part IIA

came into force:

(a) Section 2(1) of IGCO provides that save where the

contrary intention appears, the provisions of

IGCO “shall apply to this Ordinance and to any

other Ordinance in force, whether such other

Ordinance came or comes into operation before

or after the commencement of this Ordinance…”

(b) Section 10A provides that Part IIA shall apply to

an Ordinance: (i) enacted in both official

languages (which is not the CPO); or (ii) in respect

of which an authentic text is published under

13

section 4B of the Official Language Ordinance

(Cap 5) (as with the CPO).13

(c) In Commissioner of Rating & Valuation v Chan

Ho-Chin Colin (unreported., LDMR 48/2000, 26

June 2001), the very case cited at Appellant’s Case

§3.25, the relevant statute was enacted in English

in 1981, before Part IIA of IGCO came into force

in 1987. Yet s.10B was applied: see §§6-7.

(3) There are authorities suggesting that courts should not

give effect to an authenticated Chinese text but should

rely on the English text if and where: (a) the English

and Chinese texts are irreconcilable, and (b) the

authenticated Chinese text contains inaccuracies or

errors in the translation of the original English

legislation: Chan Ho-Chin Colin14 and Chan Fung

Lan v Lai Wai Chuen.15 (both cited in the Appellant’s

Case, fn 74).

(4) Such a principle clearly only applies where there is an

irreconcilable conflict between the original English

text and its Chinese translated version. It has no

13 The authenticated Chinese text for the CPO was published in 1996 by

L.N. (C) 6 of 1996. 14 Ibid §§9-10. 15 [1997] 1 HKC 1 at p.8H.

14

application where (as in the present case) the Chinese

translated version supports a construction reached

independently with regard to the English text: Building

Authority v Appeal Tribunal (Buildings) (14/2014).16

26. Several other interpretative principles are relevant in this case:

(1) There is a presumption that every word in an enactment

has a meaning. Words should not be disregarded unless

they plainly have no sensible meaning: Bennion on

Statutory Interpretation (7th ed, 2017) at §21.2.

(2) The fact that a broad or loose term is used in a statute

does not mean that the term is meaningless. A statute

may sometimes use broad terms while leaving it to the

courts to exercise their judgment as to how these are to

be applied to particular facts: Bennion §22.2.

(3) A statutory term can be gathered from its associated

words and in the light of its surroundings (noscitur a

sociis): Bennion at §23.1. Composite expressions (like

“policy and programmes”) should be construed in

whole, rather than as severed parts: Bennion §22.3.

16 [2016] 1 HKLRD 90 at §§64, 67 (Au J, as he then was).

15

(4) While the Court is not bound by dictionary definitions,

dictionaries are often used to ascertain the meaning of

terms: Bennion §24.23. Two recent examples from this

Court are Secretary for Justice v Cheng Ka Yee (2019)

22 HKCFAR 97 at §38 and HKSAR v Chui Shu Shing

(2017) 20 HKCFAR 333 at §44.

(5) Regard must be had to the practical consequences of

opposing constructions. The courts will presume that

the legislature did not intend a statute to have

consequences which are objectionable or undesirable;

or absurd; or unworkable or impracticable; or merely

inconvenient; or anomalous or illogical; or futile or

pointless: R v Central Valuation Office;17 see also T v

Commissioner of Police (per Lord Neuberger of

Abbotsbury NPJ).18

(6) If on balance the consequences of a construction are

more likely to be adverse than beneficent, this is a

factor militating against it: Bennion §9.6.

17 [2003] All ER 209 at §§116-117 (Lord Millett). 18 (2014) 17 HKCFAR 593 at §281. Lord Neuberger NPJ was (with Tang

and Fok PJJ) part of the majority in that case. The Court was divided as

to the result but not on the principles of statutory interpretation stated in

various parts of the judgment.

16

D. CONTEXT AND PURPOSE

D1. The wider CPO scheme

27. The judgments below supply an overview of the CPO: CFI

Judgment §§6-7; CA Judgment §§6-28.

28. As stated in its Long Title, the CPO’s purpose is to “provide

for the designation, control and management of country

parks and special areas, the establishment of the Country and

Marine Parks Board, and for purposes connected therewith”.

29. The powers of control and management of country parks and

special areas are vested in the Authority, who is the Director

of Agriculture, Fisheries and Conservation (s.3).

30. The Authority’s key duties are found in s.4:

(1) Section 4(a) requires the Authority to recommend to

the CE areas for designation as country parks or special

areas. The CPO does not specify the details of the

recommendation process. Still less does it impose any

express requirement to consult the Board in this regard.

(2) Section 4(b) requires the Authority to develop and

manage country parks and special areas.

[A/2/8-9]

[A/6/84-90]

17

(3) Section 4(c) requires the Authority “to take such

measures in respect of country parks and special areas

as he thinks necessary…” for the aims listed in

s.4(c)(i)-(iii). In assessing what is necessary, the

Authority has the benefit of his experience and

resources as Director of Agriculture, Fisheries and

Conservation.

31. Section 5(1) establishes the Board and identifies three general

functions, set out from the perspective of the Board’s

statutory obligations (“[the] Board…shall”):

(1) Section 5(1)(a) states that the Board shall be a

“consultative body” to advise the Authority on matters

referred to it by the Authority. This provision does not

oblige the Authority to refer any matter to the Board

but leaves it to the Authority’s discretionary judgment.

(2) Section 5(1)(b) then provides that the Board shall

consider and advise the Authority on certain policy and

programmes prepared by the Authority. It is this

provision that, in contrast with s.5(1)(a), gives rise to a

mandatory duty to consult the Board, and to the

primary dispute in this appeal.

18

(3) Section 5(1)(c) provides for the Board’s adjudicative

role in considering objections lodged under ss.11 and

17.

32. Under the CPO scheme, the Board’s role in various specific

contexts is expressly provided for in separate provisions.

33. As regards the designation of particular areas as country parks:

(1) Where the CE directs the Authority to prepare draft

maps of the proposed country parks under s.8(1),19

s.8(4) makes clear that “the Authority shall consult the

Board on the preparation”. The draft map will show the

proposed country park (including its boundaries) and

any facilities and services the Authority considers

appropriate for it (ss.8(1)-(2)).

(2) After the draft map is made available for public

inspection under s.9 and if public objections are

received, the Authority may make representations to

the Board in answer to the objections (s.11(3)).

19 While under s.4(a) the Authority has a duty to “make recommendations

to the Chief Executive for the designation of areas as country parks…”,

the CPO does not state whether the CE can give a s.8(1) direction in the

absence of the Authority’s recommendation: CA Judgment §12.

[A/6/86]

19

(3) The Board will then hear the objections. It has power

to direct the Authority to amend the draft map where

appropriate (s.11(6)).

34. In the specific context of designating special areas under s.24,

there is a simplified process:

(1) Section 24(1) provides that the CE may designate areas

outside a country park as special areas. Section 4(a) in

turn provides that the Authority has a duty to make

recommendations to the CE for designation of areas as

special areas.

(2) Section 24(2) provides that the Authority may, on the

Board’s advice, designate any area of Government land

within a country park as a special area. The CE is not

involved.

(3) Unlike s.5(1)(b), the clear and express subject matter

of the Board’s advice under s.24(2) is the actual

designation of an area as a special area, rather than

policy and programmes in respect of proposed special

areas.

(4) The words “on the advice of the Board” in s.24(2)

indicate that the Board must actually agree to the

proposed designation before it can take place. By

20

contrast, under s.5(1)(b), the Board’s role is only to

“consider and to advise” the Authority on the relevant

“policy and programmes”.

(5) The scheme of the CPO therefore clearly distinguishes

and treats differently the Authority’s decisions whether

to designate certain areas as special areas and the

Authority’s “policy and programmes…in respect of

proposed special areas”. The former is addressed in

s.24, and requires Board approval, while the latter as

provided for in s.5(1)(b) needs only be put before the

Board for consideration and advice.

(6) As further discussed below, this differentiation sheds

clear light on whether “policy and programmes” under

s.5(1)(b) can be coherently read as including individual

decisions relating to designation, be they in respect of

special areas or country parks.

35. Part IV of the CPO provides for other specific situations

where the Board has a role in relation to the control of country

park land. An occupier or Government lessee who has been

required to discontinue or modify certain uses of leased land

within a country park may lodge objections: s.17(1). As with

the s.11 scheme, the Authority can make representations to

the Board in answer (s.17(3)).

21

36. By these lights, it is clear that:

(1) The CPO mandates consultation of the Board by the

Authority in specific and unequivocal terms under

s.8(4) and s.24(2) in relation to the preparation of draft

maps for proposed country park designation and the

designation of specific areas as special areas.

(2) In the context of country parks designation, the CPO

notably does not provide for Board consultation at the

stage and in the circumstances where the Authority is

deciding whether to recommend an area for country

park designation (under s.4(a)).

(3) The CPO however expressly provides for mandatory

consultation with the Board when draft maps showing

proposed country parks are being prepared (s.8(4)), and

for an objections process by which persons aggrieved

by a draft map (for instance, in relation to the land that

is or is not included within the proposed park

boundaries) may take issue with it (s.11(1)), coupled

with powers for the Board to direct amendments to

draft maps to meet objections (s.11(6)).

22

(4) The process for special area designation under s.24(2)

illustrates the legislature’s means of clearly imposing a

specific duty to consult on a decision on whether or not

to designate a specific area for conservation purposes.

D2. Legislative history

37. The Appellant addresses the CPO’s legislative history in

§§3.14-3.19 of her Printed Case.

38. While yielding no dispositive insights on the meaning of

s.5(1)(b), the history broadly supports the Authority’s case:

(1) As noted at Appellant’s Case §3.17, the Secretary for

Environment considered that the addition of the present

s.5(1)(b) would make clear that the Authority will

consult the Board on “major policies and programmes

in respect of country parks and special areas”.20

(2) The subject matter of consultation was identified as

“major policies and programmes”; not any and all

proposed measures having “significant impact” or

being “otherwise important”.21

20 HK Hansard, 10 March 1976, pp.641-642. 21 Appellant’s Case §6.1. In this connection, the Appellant’s Case §4.18

misrepresents the effect of Hansard, 10 March 1976, pp.641-642.

[B2/18/?]

[B2/18/?]

23

(3) The word “major” supports the view that policies and

programmes within s.5(1)(b) concern matters of a

broad, general or systemic nature, rather than specific

single decisions as to individual situations or sites.

(4) The historical materials record that the Board was

established to “assist” the Authority and to give it “the

full support of both the community and the

Government”.22 This aligns with the Authority’s case

that the Board was established as an auxiliary resource

to assist the Authority, rather than pervasively monitor,

supervise, vet or micro-manage its work.

39. The reference in the Appellant’s Case §3.16 to the Board’s

“active part” in the Authority’s decision-making liberally re-

interprets the speech of one legislator, Mr Cheong-Leen.

What he in fact said was that s.5(1)(b) meant that the Board

“... will take an active role in advising on the policy and

programmes in respect of all country parks and special areas”

(emphasis).23 This of course sheds no light on the meaning of

“policy and programmes” and is in any event not a ministerial

statement made by a Government official: see Cheung Kwun

Yin §§14-15.

22 HK Hansard, 7 January 1976, p.384. 23 HK Hansard, 10 March 1976 at p.639.

[B2/17/?]

[B2/18/?]

24

D3. Wider policy landscape on enclave protection

40. A feature of the wider policy context is that areas and

enclaves considered unsuitable for country park designation

can still be protected by various other means.

41. The 2011 Working Paper identifies some key alternative

measures for areas not designated as country parks (§§4.1-

4.8). In particular:

(1) Such areas may be subject to statutory planning

controls by inclusion in a Development Permission

Area plan, followed by an Outline Zoning Plan under

the Town Planning Ordinance (Cap 131). The areas

can be included into areas also promoting

environmental conservation, such as those zoned

“conservation area”, “coastal protection area” and

“site of special scientific interest”.24

(2) Areas falling within one of the 12 Priority Sites under

the New Nature Conservation Policy may be protected

through the Public-Private-Partnership scheme and the

Nature Conservation Management Agreement scheme.

24 Annex 2 to the 2011 Working Paper, pp.3-4. [B1/4/75-76]

25

E. “POLICY AND PROGRAMMES”

E1. Ordinary and natural meaning

42. The actual words of s.5(1)(b) are of focal importance.

43. The natural and ordinary meaning of the words “policy and

programmes” (“政策及計劃”) is clear.

44. As regards “policy”:

(1) The courts below were entirely correct to hold that the

word refers to or denotes “a course or set of general

principles” to guide the Authority’s conduct: CFI

Judgment at §38; CA Judgment at §§52-53.

(2) The understanding of the courts below aligns with and

is strongly supported by the phrase “政策” in the

Chinese version. This unequivocally refers to an

administrative strategy – a forward looking matter.

(3) Merriam-Webster’s Dictionary likewise defines

“policy” as a “a definite course or method of action

selected from among alternatives and in light of given

conditions to guide and determine present and future

decisions”. See also the Shorter Oxford English

[A/2/19]

[A/6/96-97]

26

Dictionary (6th ed, 2007) definition: “a course of

action or principle adopted or proposed by a

government, party, individual, etc; any course of action

adopted as advantageous or expedient”.

45. As regards “programme”:

(1) The courts below were right to read the word as

meaning “a plan or scheme that is of general and broad

nature”: CFI Judgment at §38; CA Judgment at §§56-

57.

(2) This reading is again strongly supported by the Chinese

word for “programme” (i.e. 計劃 ), which literally

means a “plan”. Absent any clear contradiction or

linguistic impediment in the English text, the meaning

accorded to “programme” must give effect to the clear

meaning of the corresponding Chinese term (計劃).

(3) This aligns with the natural and ordinary sense of the

word “programme”, which is defined in Merriam-

Webster’s Dictionary as “a plan or system under

which action may be taken toward a goal”. The

Shorter Oxford English Dictionary defines

“programme” as a “plan or outline of (esp. intended)

activities; … a planned series of activities or events”.

[A/2/19]

[A/6/98]

27

46. In the Queensland case of Bituminous Products Pty Ltd v

Department of Main Roads,25 the court had to consider the

meaning of “scheme or program” in the context of the Judicial

Review Act 1991, which defines what decisions are amenable

to judicial review.

47. The court noted that “programme” naturally denotes the

“need for some planned action” in the future, and is

characterised by the quality of coherence: §§24, 27. It further

noted that “one must be on guard against dissecting a given

program so as artificially to confer an unwarranted status, as

miniature ‘programs’, on any its internal arrangements”: §24.

E2. The Authority’s interpretation

48. The Court of Appeal observed at CA Judgment §57 that the

words “policy and programmes” refer to the “formulation of

principles (as policy) and the making of plan or scheme (as

programme) on a high level of generality”.

49. The Authority respectfully agrees.

50. The words “policy and programmes” appropriately describe

the matters prepared by the Authority that should, in the

25 [2005] QSC 42.

[A/6/98]

28

legislature’s judgment, be subject to additional consideration

and input through the Board.

51. It is important to keep in mind that any legislative scheme

establishing a consultative body for aspects of a primary

authority’s functions must strike a workable balance between

competing considerations, with a view to the overall efficacy

of the scheme:

(1) If time and other resources were not a factor, then it

may well be helpful to have an additional set of

perspectives and insights on nearly every aspect of a

given authority’s work.

(2) But time and resources are very much a factor in most

public contexts – and certainly so in the realm of nature

conservation.

(3) In such contexts, the legislature must decide and

demarcate the situations for which, in its assessment,

the time and other costs of additional input are

warranted.

52. To read “policy and programmes” as referring to framework

matters that generally direct or guide, in a forward-looking,

systemic manner, what and how actions are to be taken in

29

specific and individual cases, is to recognise a readily

intelligible and sensible balance by the legislature.

53. On this reading, the balance struck in the overall CPO scheme

rejects a mandatory duty that is so wide as to cover nearly

every aspect of the Authority’s work in respect of country

parks in favour of a mandatory consultative duty that is

limited to:

(1) General framework or schematic matters established

or proposed by the Authority that are likely, by their

very nature, to affect a range of specific/individual

future cases and actions by the Authority, quite

possibly on a recurring basis. These are what “policy

and programmes” within s.5(1)(b) refers to.

(2) Certain specific measures or decisions within the

Authority’s power which by their essential nature

warrant, in the legislature’s judgment, a mandatory

duty to consult the Board on, i.e. the preparation of

draft country parks maps for CE approval under s.8,

and designation of special areas under s.24.

54. Understood in this light, the Court of Appeal’s reference to “a

high level of generality” (CA Judgment §57) was clearly not

intended as an extension of the statutory wording but is

[A/6/98]

30

simply an indication, cast in relative terms, of the kind of

matters that the legislature has chosen to cover under s.5(1)(b).

55. A policy or programme must obviously be more general than

the individual decisions that are carried out or implemented

pursuant to it, or indeed those that will be carried out, perhaps

far into the future and/or by way of numerous progressive

steps (scenarios which the Appellant’s expansive

interpretation fails entirely to account for and address).

56. Thus understood, s.5(1)(b) plainly contemplates two broad

levels of generality in relation to decisions and acts of the

Authority, with the dividing line of consultative duty running

between them:

(1) Policies and programmes, being matters comprising

directive principles, organising values or priorities, or

constituting a coherent and systematised plan of action.

(2) Individual acts carried out or implemented pursuant to

such policies and/ or programmes by executive action.

57. While consultation is required for policies and programmes

in the above stated sense, it is not mandatory under s.5(1)(b)

for individual acts implementing or executed in accordance

with policies or programmes.

31

58. Several points bear emphasis.

59. First, there is a plain conceptual and linguistic distinction

between individual acts or decisions taken pursuant to a

programme and the programme itself. An action or decision

does not itself constitute a policy or a programme (or part of

one) merely because it implements a policy or programme.26

60. The Chinese version of s.5(1)(b) very clearly reflects this

distinction. It requires consultation on a “計劃” – a plan of

action – not the actual decisions subsequently carried out

pursuant to that plan, and still less any actions that may be

alleged to have deviated from plan.

61. Second, other features of the statutory wording and context

support the Authority’s case:

(1) S.5(1)(b) adopts the phrase “policy and programmes

prepared by the Authority” (“總監…所擬定的政策及

計劃”). Whilst it is natural to refer to policies and

programmes in the sense identified by the Authority

and the courts below as being “prepared”, it is highly

26 The Authority also adopts the reasoning of the CA in CA Judgment §64.

The fact that individual assessments were carried out under the same

approach and with the same set of criteria does not provide the “nexus”

required for saying that the assessments are themselves altogether one

programme. The individual assessments themselves cannot be sensibly

regarded as miniature programmes either.

[A/6/100]

32

strained to refer to the implementation or application of

policies and programmes as matters of preparation.

The latter are simply matters which could be described

as “decided or carried out” by the Authority, based on

directives that have already been “prepared”.

(2) As earlier noted, comparison between s.24(2) and

s.5(1)(b) shows that actual acts or decisions as to

special area designation are, within the CPO scheme,

separately identified and differently treated from

policies or programmes in respect of proposed special

areas. This likewise indicates that the actual decision

whether to designate a country park is not to be equated

with a programme in respect of a country park under

s.5(1)(b).

(3) It is common ground that s.5(1)(b) is an exception to

the general position under s.5(1)(a).27 The two sub-

sections must be harmoniously read. An expansive

reading of s.5(1)(b) undermines the fundamentally

voluntary nature of the Authority’s choice to consult

the Board under s.5(1)(a) on only such matters as it sees

fit in the exercise of its expert judgment.

27 See Appellant’s Case §4.9.

33

(4) Other than the Board’s duty to advise on policies and

programmes generally, all of its mandatory

consultative functions commence only at later stages in

the statutory scheme, after a positive decision by the

Authority to recommend or propose an area for

designation. The nature of that involvement is set out

in concrete terms by ss.8(4), 11 and 24, rather than left

generally to be interpreted or implied under s.5(1)(b).

(5) The scope of the words “policy and programmes” must

also be read in the light of the term “measures” (措施)

in s.4(c). The term is clearly more apt to describe

individual implementation acts, including ones carried

out pursuant to a general policy or plan. In contrast,

while policies and programmes may be understood as

particular kinds of measures, not all measures amount

to policies or programmes.

62. Third, the Authority’s interpretation better accords with and

gives effect to the CPO’s overall scheme and purposes:

(1) There is no basis for assuming – and it is indeed

contrary to the available legislative history to suggest –

that the legislature intended for the Board, a

consultative body advising on the Authority’s

“formulation” of policy and programmes, to also be

34

involved in the “execution or implementation” of those

policy and programmes: CA Judgment §57.

(2) The implications of a more expansive reading of

s.5(1)(b) are stark. A considerable part of the

Authority’s work involves day-to-day implementation

of its policies and programmes in respect of extensive

country park areas across Hong Kong. This matters:

(a) The Authority has wide-ranging general duties to

“develop and manage” country parks under s.4(b),

and to take measures as to wide-ranging aspects of

their use, protection and preservation under s.4(c).

(b) Ready examples of actions taken pursuant to such

duties range from processing applications for

events and sporting competitions 28 to the

implementation of public education programmes

to discourage hikers from littering in country

parks.29

28 The relevant policy/programme is the “Guidelines on permit

applications for holding fundraising events, sporting competitions,

public meetings or making public speeches in country parts or special

areas” dated December 2015:

https://www.afcd.gov.hk/english/application_form/permit/permit_cou/

files/1a_Guideline_Event_Application_Eng_RevDec2015.pdf.

There are about 300 such applications per year. 29 The relevant policy/programme can be found in, for example,

Committee Paper WP/CMPB/8/2016

(https://www.afcd.gov.hk/english/aboutus/abt_adv/files/WP_CMPB_8

[A/6/98]

35

(c) If all individual acts and decisions by the

Authority implementing/executing what might be

described as “policy and programmes” are subject

to mandatory consultation, then for the country

park designation process alone, the Authority will

have to consult the Board at least three times, on:

(i) the policy and programmes as formulated, (ii)

the policy and programmes as implemented in

each specific instance (including, on the

Appellant’s case, individual site assessments), and

then (iii) the preparation of the draft maps under

s.8(4) for the proposed country park in question.

(d) As noted in CA Judgment at §61 and undisputed

by the Appellant, this could involve substantial

repetition / overlap of work.

(3) If every execution or implementation of a policy or

programme requires consultation with the Board, then

the Authority’s ability to act quickly and responsively

in discharging its functions may be significantly

hampered. This much seems to be accepted by the

Appellant in her Printed Case at §4.6.

_2016_Eng.pdf) and Committee Paper: WP/CMPB/7/2017

(https://www.afcd.gov.hk/english/aboutus/abt_adv/files/WP_CMPB_7

_2017_Eng_2.pdf ).

[A/6/99-100]

36

(4) The Appellant’s preferred position is indeed likely in

at least some instances to be simply unworkable:

(a) Take the hypothetical example of a newly

prepared set of policies and programmes (in the

sense held by the Authority and the courts

below), set out by the Authority in a position

paper, for determining whether individual trees

over a specified age within all country park

areas should be specially protected.

(b) Given its nature, the implementation of such a

programme would likely be on a continuing

basis, as the age and condition of individual

trees change. The scope of application would be

as extensive as the land occupied by country

parks across Hong Kong.

(c) On the Authority’s interpretation, the clear and

readily workable position under s.5(1)(b) is that

the Authority would be required to seek the

Board’s consideration and advice on its

intended general approach to assessment as set

out in the position paper, but not on the

subsequent individual assessments carried out

pursuant to the formulated approach as

considered/approved by the Board.

37

(d) In contrast, on the Appellant’s reading of

s.5(1)(b), each assessment of every tree within

the parameters of the programme would have to

go before the Board. That position is entirely

unworkable and, as a matter of sound public

administration, starkly undesirable.

(e) Absent the clearest express words, any

interpretation of s.5(1)(b) that yields such

startling results should be firmly rejected.

(5) The Appellant can derive no assistance from any “de

minimis” principle requiring assessment of whether a

given decision or measure is non-trivial. It is wholly

unclear how a de minimis principle can be workably

applied in the conservation context, where the same

environmental feature may attract a very wide range of

views about its value.

(6) As seen below, the Appellant has evidently come to

appreciate the clear problems with an expansive

interpretation of “policy and programmes”, and now

seeks (impermissibly) to jettison the language of

“policy and programmes” altogether, in favour of a

“significant impact”/ “importance” test.

38

63. The Appellant’s Case §4.29 suggests that the Authority’s

construction leaves a regulatory lacuna. But not so:

(1) For starters, it is circular to argue that the Authority’s

interpretation would frustrate the intended function of

the Board by allowing the Authority to “avoid” the duty

to consult (cf Appellant’s Case §§4.7, 4.28-4.30).

(2) The very question here is whether the Authority is

under a duty to consult the Board at all on individual

designation assessments. If the Court concludes that the

CPO does not impose such a duty, then the Authority is

not under a duty to consult, and there is necessarily no

avoidance of it, nor any frustration of statutory purpose.

(3) Further, as explained at CA Judgment §66, for matters

falling outside the scope of the statutory duty to consult,

the Authority would be subject to its general public law

duties at common law. In particular, the Tameside duty

may require the Authority in the circumstances of a

given case to consult external bodies with special

expertise: Appellant’s Case §4.20.

(4) The Authority’s general public law duties aside, the

s.8(4) draft plan consultation process and the s.11

objection mechanism are wide enough to allow the

Board or the public to object to the non-inclusion of

[A/6/101]

39

certain areas in a proposed country park, provided that

a draft map is published: CA Judgment at §§14, 19.

(5) The Court will also bear in mind the alternative means

of conserving areas considered unsuitable by the

Authority for country park designation (Section D3

above).

E3. The Appellant’s newly formulated case

64. Perhaps in view of the stark difficulties with her case in the

courts below, the Appellant has now completely abandoned

any attempt before this Court to advance an actual

interpretation of the words “policy and programmes”.

65. Instead, the Appellant’s newly constituted case on s.5(1)(b)

essentially runs as follows:

(1) The Authority’s “definitional approach” is “unhelpful”,

as it is not possible to exhaustively define the

circumstances which will amount to a policy or

programme (Case §§4.2, 4.7-4.8).

(2) The Authority’s interpretation would enable the

Authority to “avoid” consultation and thwart the

legislature’s intentions (Case §§3.24(3), 4.7).

[A/6/86, 87-88]

40

(3) The Tameside duty and the Wednesbury principle

“provide a useful guide” on when the statutory duty to

consult will arise under s.5(1)(b) (Case §§4.13, 4.15).

(4) A “multi-factorial” test should be applied to determine

whether a given matter should be subject to mandatory

Board consultation, taking into account all relevant

matters (Case §§4.15-4.25).

(5) Ultimately, the Authority is required to consult the

Board under s.5(1)(b) whenever it “proposes

measure(s)” in respect of country parks or proposed

country parks that “may have a significant impact or

are otherwise important” (Case §6.1).

(6) In effect, each and every decision whether to designate

some or other piece of land for country park purposes

would be a significant or important decision, requiring

consultation under s.5(1)(b) (Case §§4.33, 6.2).

66. With respect, the Appellant’s argument is deeply flawed.

67. Foremost, the argument utterly abandons the task of

interpreting the words used in s.5(1)(b). It makes no attempt

to consider the meaning of the words “policy and

programmes prepared by the Authority” whatsoever.

41

68. The Appellant’s new case on s.5(1)(b) replaces the words

“policy and programmes” with “measures” (cf s.4(c) which

actually uses that word, which has a far wider lexical range),

and newly introduces the concepts of “significant impact” and

“otherwise important” as grounds for the duty to consult.

69. These spacious abstractions are nowhere found in the

language of s.5(1)(b) and cannot be arrived at by any means

of statutory interpretation. This is a blatant attempt to

altogether rewrite s.5(1)(b) to suit the Appellant’s case.

70. There is no substance in the claim that the Authority has opted

for a “definitional approach” (Appellant’s Case Section 4A),

if by that the Appellant means an attempt to extend (rather

than discern) the objective meaning of the words in s.5(1)(b).

71. Moreover, the Authority and the courts below have never

sought to define “exhaustively the ‘circumstances’ which will

amount to a ‘policy’ or ‘programme’” (Appellant’s Case

§4.8). Whether a given matter or set of circumstances falls

within s.5(1)(b)’s scope must ultimately depend on the

particular facts. But the Court may still usefully identify

broad guiding parameters that generally apply to each case,

including as to what s.5(1)(b) clearly does not include.

42

72. All that the courts below did was to decide, without difficulty

(cf Appellant’s Case §4.1), that the decisions under challenge

did not amount to “policy” or “programmes”, regardless of

any possible debates over the penumbral meaning or

application of those terms.

73. That statutory words may be elusive and hard to

comprehensively define for the purposes of all possible cases

does not mean they can be disregarded. Statutes (and even

more so, constitutional instruments) often use broad terms to

indicate the general legislative intention, while leaving it to

courts to exercise their judgment as to how they are to be

applied to the particular facts, especially where “the

expression has a clear everyday meaning and any attempt to

define it is likely to create more doubt than it resolves”.30

74. As earlier analysed, reliance on the presumption against

evasion of legislative purpose is also misplaced. If the Court

decides that the Authority is under no relevant duty to consult,

there is no evasion of duty or frustration of legislative purpose.

There is in any case no valid basis for assuming any intention

or tendency on the Authority’s part to seek to “avoid”

appropriate consultative input on its functions.

30 §26(2) above; Bennion §22.2.

43

75. The Appellant’s reliance on the Tameside and Wednesbury

principles is fundamentally misplaced:

(1) The argument appears to be that the Authority would

be under a Tameside duty when deciding whether to

recommend a designation under s.4(a) (Case §§4.10-

4.12), and that the relevant common law principles

somehow supply the means of determining whether the

statutory duty to consult the Board under s.5(1)(b) is

triggered (Case §4.13).

(2) This in effect applies principles relevant to the judicial

supervision of a public law discretion to the

interpretation of the mandatory statutory duty under

s.5(1)(b), which has no discretionary element. This

cannot be right.

(3) Confusingly, the Appellant seems to envisage a

discretionary decision by the Authority whether to

refer a matter to the Board for consultation, which

would then be subject to judicial review on a

Wednesbury basis (Appellant’s Case §§5.2, 6.1). This

flies in the face of the mandatory duty to consult under

s.5(1)(b), which does not depend on a decision or

discretion of the Authority.

44

(4) Although the Tameside duty may mean that an

authority should in properly discharging its duties take

certain consultative or investigative steps, it is trite that

the applicability and extent of such a duty must depend

on the particular circumstances of the case.

(5) It is certainly not the case that the Tameside duty

requires that in all situations involving “significant

impact” or which are “otherwise important”, the

Authority must consult. That is simply not the test: c.f.

Deng Suet Yan v Hong Kong Housing Authority

[2017] 4 HKLRD 73 at §19.

(6) Standing back, what the Appellant is attempting is to

use the Tameside duty as a backdoor means of

introducing a consultative duty, which is not permitted:

R (Plantagenet Alliance) §137.31

76. The Appellant’s newly minted case is beset by other errors:

(1) Her reliance on Hansard 1976, pp.641-642 to suggest

that the legislative intent was for the Board to be

consulted on “decisions on ‘important’ future measures

(i.e. which are likely to have a significant impact on

parks)” (Case §4.18) is wrong. What the government

31 [2015] 3 All ER 261.

[B2/18/?]

45

stated was that the Board would be consulted on “major

policies and programmes”.

(2) The Appellant’s Case §§4.31-4.32 again invokes the

particular content of an established duty to consult. But

the logically prior issue here is whether a duty to

consult applies at all to cases like the present. A like

argument was rejected in the CA Leave Judgment at

§§12-14. The Appeal Committee also refused leave on

such an argument: see Question 2 under the

Application for Leave to Appeal; Appeal Committee

Determination §2.

(3) Under the heading “Summary”, Appellant’s Case

§4.33 asserts that decisions whether to recommend

designation under s.4(a) “do not easily lend themselves

to discretionary consultation under s.5(1)(a)”, but are

“more naturally the subject of mandatory consultation

under s.5(1)(b)”. The meaning and relevance of this

point is unclear.

77. The Court is accordingly invited to affirm the Authority's

interpretation and the Court of Appeal’s ruling and reject the

Appellant’s case on s.5(1)(b).

[A/11/117-118]

[A/13/124-125]

[A/15/133]

46

F. “IN RESPECT OF”

78. The Authority’s case on the meaning of the words “in respect

of” was rightly affirmed at first instance: CFI Judgment §§41-

44.

79. The matter arises in this appeal because, even assuming that

an assessment or decision not to recommend an enclave for

country park designation is a policy/programme, it does not

follow that it is “in respect of” a country park.

80. As this Court noted in an earlier case in a different context,

the range of the words “in respect of” is very broad. The

phrase may carry “the widest possible meaning of any

expression intended to convey some connection or relation

between the two subject-matters to which the words refer”.32

81. However, the operative range of the phrase as used within a

particular statutory provision will necessarily depend on its

particular context.33

82. In the context of a provision imposing a mandatory duty on

the Authority and restricting its general discretionary

judgment on consultation, Au J highlighted the importance of

32 Securities and Futures Commission v Pacific Sun Advisors Ltd (2015)

18 HKCFAR 138 at §23. 33 Pacific Sun Advisors Ltd (supra) at §25.

[A/2/19-21]

47

“the underlying principal or primary purpose and objective”

of the policy/programme/decision at hand to determine

whether it is “in respect of” country parks (or a proposed

country park). A (non-designation) decision for an enclave

may have a “consequential corresponding effect” on a

country park, in that non-inclusion would mean that the

enclave area would not be brought within its boundaries. But

that in itself does not make the decision one that is “in respect

of” the country park. See CFI Judgment §44 .

83. Au J was plainly right:

(1) The Chinese wording “就郊野公園…所擬訂的政策

及計劃” (literally meaning the preparation of policy or

programmes for country parks) makes clear that it is

insufficient that the policy/programme merely relates

to or affects a country park. Rather, the

policy/programme prepared must be intended for and

directly concerning country parks.

(2) A wide interpretation of “in respect of” also sits very

uneasily with the word “prepare”. The Authority does

not “prepare” a policy or programme in respect of a

country park in order that the policy or programme will

have incidental side-effects on the park. On a natural

[A/2/21]

48

reading, the relevant policy or programme has to be

prepared specifically for that country park.

(3) The Appellant’s wider reading of “in respect of” will

lead to absurd results:

(a) The inescapable logic of her case is that any land

that is not identified for recommendation for

country park designation following some

assessment process will be part of a policy or

programme “in respect of” a (proposed) country

park, and must therefore of itself be the subject of

mandatory consideration and advice by the Board.

(b) But there is no limit to the type, location or range

of areas which may be, by default, not considered

by the Authority to be worthy of country park

designation at a given point in time.

(c) It plainly cannot be the legislative intention to

subject the Authority and the Board to an

essentially limitless duty of consultation in respect

of such areas. Yet that is the necessary effect of

the Appellant’s case as presently articulated.

49

G. QUESTION 2

84. Question 2 is a fact-specific question and can be relatively

succinctly answered in light of the Authority’s answer to

Question 1.

85. It is plain and undisputed that the principles and criteria for

designating areas as country parks set out in §§3.1 & 3.2 and

Annex 2 of the 2011 Working Paper were the “policy” and

the action plan on the way forward for assessing the 54

enclaves, which was set out in §§5.1-6.2 of the 2011 Working

Paper was the “programme”.

86. Properly analysed, the Authority’s subsequent assessments of

the 6 Enclaves and non-recommendation decision, conducted

in accordance with the 2011 Working Paper, do not

themselves fall within the ambit of s.5(1)(b).

87. First, for the reasons set out for Question 1 above, the

Authority’s individual assessments and decisions on specific

areas do not constitute “policy” or “programmes”.

88. The Authority’s assessments of the 6 Enclaves were merely

applications of the policy and programme set out in the 2011

Working Paper, which the Board considered and approved.

The individual assessments did not themselves amount to a

[B1/4/60-61, 73-77]

[B1/4/64-65]

50

policy or a programme. As such, they are outside the scope of

the s.5(1)(b) duty to consult.

89. Second, even if the Authority’s assessments and

(non)recommendation decisions are to be considered policies

or programmes, they were plainly not prepared “in respect of”

country parks or proposed country parks:

(1) An enclave which has not been designated or

recommended for country park designation is neither a

country park nor a proposed country park. It cannot

sensibly be argued that a non-designation decision in

respect of an enclave is in respect of a country park,

when the very substance of the decision is not to

recommend the enclave for country park designation.

(2) While the Authority’s assessment of the 6 Enclaves and

its non-recommendation decision might have an

indirect or consequential impact on country park areas

around the Enclaves, they are decisions to “protect and

preserve the subject enclaves themselves”: CFI

Judgment at §44.

(3) Taking a further step back, the 2011 Working Paper by

which the 6 Enclaves were assessed was prepared with

the principal aim of protecting the 54 enclaves from

[A/2/21]

51

incompatible uses and developments.34 The key criteria

of assessment at §§2.1, 3.2 and the description of the

exercise at §§5.1-5.2 focus on the enclaves themselves,

not their neighbouring country parks.

90. The Appellant’s Case §5.4 cites a “compendium test” for

recommendation which considers the surrounding country

park as “an essential element”. But this is unsupported by the

passages referred to there:

(1) The Appellant quotes §3.1 (misstated as §3.2 and 3.3

in fn 92) of an assessment of Sai Wan,35 but that refers

to whether the existence of private land would affect a

site’s country park suitability. The discussion

concerned whether the site would be compatible with

the country park setting in general.

(2) The Appellant also quotes part of §2.2 of the 2011

Working Paper. But that was only generally describing

the matters considered in the Paper, which included

both “designating new country parks or extending

existing country parks”.

34 CKL-8 at §2.2. 35 CKL-24.

[B1/4/60]

[B1/6/96-120]

52

(3) These passages do not remotely suggest that an

assessment of an enclave necessarily involves

reference to surrounding existing country parks.

91. The Appellant’s Case §§5.1-5.8 must be rejected. It is argued

that (1) the assessments made pursuant to the 2011 Working

Paper were “significant” or “important”, and that (2) in the

circumstances it was Wednesbury unreasonable for the

Authority to decide not to consult the Board.

92. As earlier noted, the proposed “significant impact” test is a

patent attempt to elicit judicial legislation. The Wednesbury

inquiry in the context of s.5(1)(b) also flies in the face of the

statutory duty to consult. The present judicial review is simply

not concerned with whether the Authority’s decision not to

consult the Board was Wednesbury unreasonable. The issue

has always solely been whether the Authority failed to consult

the Board pursuant to s.5(1)(b).

53

H. ANSWERS TO CERTIFIED QUESTIONS

94. The Authority answers the Certified Questions as follows.

Question 1

95. On a true construction of s.5(1)(b) CPO, the Authority always

comes under a duty to consult the Board with regard to the

policies and programmes that the Authority has prepared in

respect of (proposed) country parks and (proposed) special

areas, in accordance with the interpretation of the words

“policy and programmes” set out in Section E2 above.

Question 2

96. The Authority was and is not required to consult the Board

under s.5(1)(b) as regards individual assessments and

decisions on the suitability or otherwise of designating

existing enclaves as country park areas pursuant to the 2011

Working Paper.

54

I. CONCLUSION

97. The Appellant’s appeal should be dismissed.

98. The question of any public interest litigation costs order may

be more appropriately deferred until after the Court has

rendered its judgment on the appeal.

(1) The grant of leave to appeal to the full Court is

normally regarded as a sufficient threshold test on the

merits to engage the Court’s discretion on the grant of

a public interest litigation (“PIL”) costs order: Leung

Kwok Hung v President of the Legislative Council

(No 2).36

(2) However, whether the Court will ultimately make no

order as to costs will depend on all relevant factors,

including the “conduct of the parties”: Leung Kwok

Hung v President of the Legislative Council (No 2).37

(3) So the viability of any application for a PIL order will

depend on how exactly the Court rules in its judgment,

including on whether the Appellant has (as the

Authority submits) put forward a very different case

36 (2014) 17 HKCFAR 841 at §17(18). 37 (2014) 17 HKCFAR 841 at §17(10).

55

than the one previously advanced, and whether this

newly constituted case is wholly without merit.

99. The Authority therefore invites the Court to direct the parties

to lodge written submissions on costs within 14 days from its

judgment in this appeal.

31 July 2020

Abraham Chan SC

Keith Lam

John Leung

Counsel for the Respondent