BETWEEN

Before : Hon Hartmann J in Court

Dates of Hearing : 12 and 13 September 2002

Date of Handing Down Judgment : 17 October 2002

Introduction

1. On 14 March 2003, I granted leave to the applicant to apply for the judicial review of various decisions made by the Chief Executive-in-Council (the first respondent) and the Director of Lands (the second respondent). Leave was granted pursuant to O. 53, r. 3 of the Rules of the High Court. It was granted on an ex parte basis and on a reading of the papers only.

2. On 3 May 2002, the respondents filed a notice of motion to set aside that leave. They have sought to do so on two main bases. First, it is contended that the decisions which are challenged by the applicant are not properly the subject matter of the public law review jurisdiction of this Court. Second, it is contended that judicial review should only exceptionally be permitted where an applicant has an alternative remedy available; in this instance the applicant's proper course is to pursue a claim for compensation before the Lands Tribunal, a claim already instituted by it, and no exceptional grounds exist to justify it seeking judicial review at this time.

3. This judgment is restricted to and determines the respondents' notice of motion only.

The test to be applied

4. When I granted leave to the applicant, I did so on the basis that, upon a reading of the material submitted by it, I was satisfied that the material disclosed matters which, on further consideration, might demonstrate an arguable case for the grant of the relief sought. The test that I applied was based on the words of Lord Diplock in Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 at (664) :
 

"If, on a quick perusal of the material then available, the court thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for the relief."

5. In Wong Chung Ki and Another v The Chief Executive and the Secretary for Constitutional Affairs (unreported CACV 1/2000), the Court of Appeal considered the threshold test. Although some disquiet was expressed as to exactly where the threshold should lie, the Court was not inclined to change the test from the one that I have outlined, a test earlier approved by the majority of the Court of Appeal in R v The Director of Immigration, ex parte Ho Ming Sai (1993) 3 HKPLR 157 at (161 and 170).

6. In Wong Chung Ki and Another v The Chief Executive and the Secretary for Constitutional Affairs (supra) Godfrey VP made reference to Atkin's Court Forms, 2nd edition, Vol. 23(2), 1998 Issue, where the editors (at 177) refer to the threshold test in the following terms :
 

"The threshold test is whether or not there is a point for further investigation on a full inter partes basis with all such evidence as is necessary on the facts and all such argument as is necessary on the law. Leave should only be refused on the other hand if there is no prima facie arguable case at all."

Godfrey VP concluded by saying :
 

"Of course, there is room for flexibility in the application of guidelines such as these. One hopes that judges at first instance will use their common sense in applying such guidelines."

7. On this basis, looking to the guidelines, I am of the opinion that the respondents' Notice of Motion should be determined by applying the following test. Have the respondents shown that the material placed before the Court by the applicant does not disclose matters which, on further consideration, might demonstrate an arguable case for the grant of the relief sought? That being so, what the respondents must demonstrate in practical terms is that the applicant has no prima facie arguable case.

A history

8. The legal issues in this matter are so inextricably interwoven with its history, that it is necessary first to set out the relevant factual background.

9. In 1970, in terms of an exchange agreement, the applicant surrendered certain land to the Government and in return was granted lease rights over a piece of land some 2,000,000 square feet in extent situated in Penny's Bay, Lantau Island. The lease rights over that piece of land ('Lot 22') were extended to 30 June 2047 in terms of the New Territories Leases (Extension) Ordinance, Cap. 150.

10. Lot 22 runs along the coastline of Penny's Bay. I am told that at the material time there was no effective access to it from inland but, in terms of special condition 31 of the exchange agreement, the applicant was able to exercise access from the sea, that access being available to it along the greater part of its seaward boundary. During the time it possessed Lot 22, the applicant leased it for shipbuilding and related purposes. Access to the sea was therefore fundamental to the actual use of the Land and its inherent value.

11. In May 1995, the then Governor-in-Council authorised the reclamation of some 1,200 hectares of the foreshore and sea-bed of Penny's Bay ('the 1995 authorisation') to provide land for the building of two container terminals together with their associated infrastructure : roads and the like. The authorisation was made pursuant to s. 8(1)(c) of the Foreshore and Sea-bed (Reclamations) Ordinance Cap. 127 ('the Ordinance').

12. The authorised reclamation of the foreshore and sea-bed abutted directly onto the seaward boundary of Lot 22, rendering it landlocked. On the basis that its private proprietary right to use the foreshore in terms of special condition 31 of the exchange agreement had been permanently extinguished on the date of the 1995 authorisation, the applicant sought compensation in terms of the Ordinance, more particularly in terms of s. 11 and s. 12(1) which read :
 

"11. No person shall have any right against the Government or any other person to claim any money in respect of anything authorized under section 7, 8(1)(b) or 8(1)(c) except to the extent of the entitlement to claim compensation under section 12.

12. (1) Any person who claims that his interest, right or easement in or over such foreshore and sea-bed will be injuriously affected by the reclamation may deliver to the Director a written claim stating the sum of money which he is willing to accept in full and final settlement of his claim together with such particulars as he may possess to substantiate the claim and shall furnish to the Director such accounts, documents and further particulars as the Director may request him to furnish, in support of the claim."

13. The claim was submitted on 3 May 1996 to the Director of Lands ('the Director'). Compensation was sought in the sum of HK$2.539 billion. The applicant's solicitors, aware that it was constrained to make its claim in terms of the Ordinance, advised the Director that the claim was made -
 

"... pursuant to the Foreshore and Seabed (Reclamations) Ordinance for compensation by reason of our client's interest, right and/or easement in or over Lot 22 being injuriously affected by the proposed reclamation and associated works and/or the extinguishments of the marine access to Lot 22."

14. Although the applicant had sought compensation, as it was bound to do in terms of s. 12(1) of the Ordinance, on the basis that its proprietary rights had been 'injuriously affected', it was of the view that its rights being permanently extinguished amounted to a 'taking' of its property by Government and, as such, its rights were protected by art. 6 and 105 of the Basic Law, the relevant part of art. 105 reading :
 

"The Hong Kong Special Administration 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.

Such compensation shall correspond to the real value of the property concerned at the time and shall be freely convertible and paid without undue delay.

15. After submission of the claim for compensation, correspondence ensued between the solicitors acting for the applicant and the Director to see if the amount of compensation could be agreed. This process of negotiation is mandated by s. 13 of the Ordinance which commences :
 

"(1) In relation to every reclamation the Director shall before the expiry of 6 months from the date when the written claim is delivered to him or, if he has requested further particulars under section 12(1), before the expiry of 6 months from the date when they are furnished under that section, consider whether or not the claimant is a person having an interest, right or easement in or over any foreshore and sea-bed that will be injuriously affected by the reclamation and shall serve notice on the claimant in writing stating that he -
 

(a) admits the whole claim; or

(b) rejects the whole claim; or

(c) admits a specified part and rejects the remainder,

and shall where he rejects the whole claim, or admits a specified part and rejects the remainder, as the case may be, give an adequate statement of his reasons for the rejection.

(2) If the Director admits the whole claim, or admits a specified part and rejects the remainder, he may agree with the claimant as to the amount of compensation to be paid to the claimant in full and final settlement of the whole claim or a specified part, as the case may be."

16. It was not possible, however to reach agreement as to compensation and on 2 November 1999 the applicant pursued the only remedy available to it; namely, an application to have the matter determined by the Lands Tribunal under s. 13(3) of the Ordinance. S. 13(3) reads :
 

"Where -
 

(a) the Director rejects the claim in whole or in part

(b) ...

the Director or the claimant may refer the claim to the Lands Tribunal to determine in accordance with this Ordinance and the Lands Tribunal Ordinance (Cap. 17) the amount of compensation to be paid."

17. In my judgment, s. 13(3) of the Ordinance gives exclusive jurisdiction to the Lands Tribunal.

18. On 19 November 1999, the Director filed a notice of opposition stating that the claim for compensation was opposed on the grounds that the applicant had suffered no loss compensatable under section 12 of the Ordinance or alternatively that the amount of compensation claimed was excessive.

19. By letter dated 14 December 1999, the applicants' solicitors sought details of the grounds of opposition. Such details were supplied by a letter from the Department of Justice dated 7 January 2000.

20. If the matter had proceeded to the Lands Tribunal, the Tribunal would have acted in terms of s. 13(3) and (4), the latter subsection reading :
 

"(4) In determining a claim referred to it under subsection (3) in respect of a reclamation, the Lands Tribunal shall -
 

(a) hear any evidence which the Director or the claimant may wish to tender and, if so requested, hear counsel or a solicitor on behalf of the party making the request; and

(b) determine the amount of compensation payable by the Government to the claimant in respect of any interest, right or easement of the claimant in or over any foreshore or sea-bed injuriously affected by the reclamation in full and final settlement of the claim.

21. The matter, however, has not yet proceeded to determination by the Lands Tribunal. This is because of the occurrence of subsequent events.

22. During the course of 1999, the Government took the view that the reclamation of Penny's Bay for container terminals was no longer viable. Fresh plans were prepared and on 15 October 1999 the Director gave notice in terms of s. 5 of the Ordinance of a proposal to reclaim approximately 330 hectares of foreshore and sea-bed to provide land for a theme park - Disneyland - and its associated infrastructure. However, the area of foreshore and sea-bed affected by this new proposal was smaller in extent than that affected by the 1995 authorisation. This new proposed reclamation would also abut directly onto the seaward boundary of Lot 22, rendering it landlocked. The applicant registered an objection to the new proposal.

23. On 13 March 2000, the applicant was informed by the Director that, if the Chief Executive-in-Council did decide to authorise the new proposal for the reclamation of foreshore and sea-bed for Disneyland, the Director would recommend that at the same time, for the sake of orderly administration, the Chief Executive-in-Council withdraw the 1995 authorisation.

24. The applicant objected. It contended that the 1995 authorisation had permanently extinguished its rights over the foreshore and sea-bed and wished its claim for compensation assessed as at the date of the 1995 authorisation. It was concerned that a withdrawal of the 1995 authorisation may constitute an attempt to remove the statutory foundation for its claim for compensation.

25. Notwithstanding the applicant's objections, on 28 March 2000, the Chief Executive-in-Council withdrew the 1995 authorisation and at the same time authorised the reclamation of foreshore and sea-bed in Penny's Bay for the Disneyland theme park ('the 2000 authorisation').

26. Correspondence ensued between the applicant's solicitors and the Department of Justice, the Department now representing the Director.

27. In the course of that correspondence, the Department, on behalf of the Director, accepted two propositions :
 

(i) that the withdrawal of the 1995 authorisation had not extinguished the applicant's rights to claim compensation under that authorisation.

(ii) that the proprietary rights of the applicant that were extinguished by the 1995 authorisation were permanently extinguished and were not capable of revival.

28. There was, however, fundamental disagreement as to the manner in which compensation could lawfully be assessed.

29. The applicant, being of the view that the loss of its proprietary rights had amounted to a 'taking' of its property; that is, a deprivation of its property under art. 105 of the Basic Law, contended that compensation could not be assessed on the basis that it amounted in substance to damages in respect of an adverse effect on land. In particular, the applicant contended that a claim for compensation corresponding to the real value of the property at the time of deprivation -
 

(i) could not be diminished by any form of reference to the later withdrawal of the 1995 authorisation and the substitution of the 2000 authorisation;

(ii) could not be diminished by reliance on the principle of betterment, such betterment accruing as a result of road works and the like which were intended as part of the reclamation.

30. The Department, however, so it would seem, appeared unprepared to resile from the view that the withdrawal of the 1995 authorisation and its replacement by the 2000 authorisation would be relevant in assessing compensation under the Ordinance for the manner in which the applicant's rights had been injuriously affected. Certainly, it was not prepared to resile from its assertions as to betterment.

31. By letter dated 16 February 2002, the applicant sought clarification of the Government's position, asking :
 

(a) Whether it was still maintained that the applicant's claim for compensation under the Ordinance arising out of the 1995 authorisation was in any way affected by the subsequent withdrawal of that authorisation and its replacement by the 2000 authorisation. If yes, why was that position still maintained?

(b) Whether it still maintained that under the Ordinance compensation payable should be set off against betterment. If yes, whether it made any difference to the Government's position that the betterment works authorized under the 1995 authorisation were no longer to be carried out.

32. By letter dated 27 February 2002, the Department replied :
 

"The issues you raised in the said letter including the relevance and effect of the 2000 Authorization are valuation matters which are within the exclusive jurisdiction of the Lands Tribunal. ... It would not be helpful for either party to have to commit themselves at this stage to any single valuation approach in the proceedings before the Lands Tribunal."

33. It is evident from the correspondence that the Department, on behalf of the Director, did not see 'the decisions' made by it in the course of negotiations with the applicant as being in any way the equivalent of the imposition of Government policy on the applicant or the making of administrative decisions which would be binding on the applicant. It recognized that its statements as to what it saw as being the correct principles to apply were essentially assertions, no more than that - expressions of view, if you will - which would, in the absence of settlement, be determined to be correct or incorrect by the lands Tribunal, the court of competent jurisdiction. By way of illustration, in its letter of 30 January to the applicant's solicitors the Department wrote :
 

"We note your arguments on "betterment". We disagree with your contentions. However, we do not find it necessary, in this exchange of correspondence, to resolve such differences as may exist between our respective client's as they are plainly matters within the exclusive jurisdiction of the Lands Tribunal in the assessment of your clients' claim for compensation under the Ordinance failing any amicable agreement between our clients."

34. On a reading of the papers, I am satisfied that the assertions made by the Department as to what matters would or would not be relevant in assessing compensation were no more than that. On a plain reading they cannot be taken as administrative decisions capable of judicial review. Put simply, the Department was acting as solicitor for the Director. During the course of the hearing I was referred to a number of authorities to persuade me that reviewable 'decisions' were contained in the Department's correspondence. In my view, those authorities were not on point.

35. At this juncture it should be noted that on 3 April 2001, without prejudice to its right to continue its claim for compensation under the Ordinance in respect of the 1995 and/or the 2000 authorisation, the applicant surrendered Lot 22 to the Government for a consideration of HK$1.506 billion. With the surrender of Lot 22 to Government, the applicant lost any interest in the land itself; its sole remaining interest being for receipt of compensation under the Ordinance.

36. Approximately one week after it had surrendered Lot 22 to Government, on 11 April 2001, the applicant submitted a claim for compensation in terms of the Ordinance in respect of the 2000 authorisation. That claim was in the same sum as the amount earlier claimed in respect of the 1995 authorisation; namely, HK$2.539 billion. This second claim, I understand, is still the subject of negotiation. No application to the Lands Tribunal pursuant to s.13(3) of the Ordinance has yet been made in respect of it.

The decisions challenged in the application for leave

37. In its notice of application for leave to apply for judicial review, the applicant sought relief in respect of the following decisions :
 

(i) The decision of the Chief Executive-in-Council made on 28 March 2000 to withdraw the 1995 authorisation.

(ii) The decision of the Chief Executive-in-Council made on 28 March 2000 to authorise the reclamation of foreshore and sea-bed for the Disneyland theme park and associated infrastructure (the 2000 authorisation).

(iii) The decision of the Director stated in letters written to the applicant's solicitors 'to abrogate and/or otherwise curtail the applicant's right to compensation and/or the amount of compensation' by relying on the withdrawal of the 1995 authorisation and/or the 2000 authorisation.

(iv) The decision of the Director stated in letters written to the applicant's solicitors that any compensation payable to the applicant should be set off against betterment, that betterment accruing from infrastructure improvements referred to in the 1995 authorisation.

38. As I have already said, I am satisfied, on a reading of the papers, that the 'decision' of the Director referred to in paragraphs (iii) and (iv) above were not administrative decisions in the public law sense, capable of review. They are no more than assertions by one party made in the course of negotiations, assertions as to law and/or principles relevant to compensation that may or may not be correct.

39. As to the relief sought in the notice of the application for leave, it was to the following effect :
 

(i) A declaration that the decisions of the Chief Executive-in-Council made on 28 March 2000 to withdraw the 1995 authorisation and to authorise the reclamation of foreshore and sea-bed for Disneyland (the 2000 authorisation) have 'no effect whatsoever' on the applicant's claim for compensation pursuant to s. 12(1) of the Ordinance.

(ii) A declaration that the rights of the applicant over the foreshore and sea-bed of Penny's Bay were permanently extinguished by the publication of the 1995 authorisation and that compensation payable pursuant to s. 12(1) of the Ordinance should be valued as at the date of the 1995 authorisation without provision for any set off by way of betterment.

(iii) Alternatively, if the provisions of the Ordinance do 'require or allow' compensation payable to the applicant to be diminished, either by way of betterment or by reference to the withdrawal of the 1995 authorisation and the making of the 2000 authorisation, a declaration that such provisions are inconsistent with art. 6 and art. 105 of the Basic Law.

(iv) Consequential to (iii) above, 'such relief as is just and expedient' to secure for the applicant the full measure of compensation to which it is entitled because of the permanent deprivation of its rights.

The constitutionality issue

40. Mr Denis Chang QC, leading counsel for the applicant, rejected the contention that the application for judicial review in substance does no more than put into dispute principles and methods of valuation, matters which clearly lie within the jurisdiction of the Lands Tribunal. The application for judicial review, he said, does not concern the merits of valuation. It is instead a challenge which seeks determination of important constitutional issues.

41. I understood Mr Chang's summary of the constitutional issues to be along the following lines :
 

(a) There is a fundamental difference between a case in which property is taken by Government (where there is, in terms of art. 105 of the Basic Law, a deprivation of property) and a case where land is injuriously affected by a proposed Government scheme without any property being taken. The distinction is crucial. As was said by the Court of Appeal in Re Trustees of the Estate of Tsang Hung Tin, deceased [1971] HKLR 68 (at 74 per Mills-Owen J) :
 

"It is not entirely clear to me that the analogy with claims for compensation arising out of injurious affection, under the English legislation concerning compulsory acquisition, is correct. The claim under the Ordinance [the Public Reclamations and Works Ordinance Cap. 113] is "in respect of the extinguishment ...of any ... private right" (section 6). This appears to conceive of the "taking" of the private right by the Crown, not of injurious affection to property to which the right is appurtenant or in connection with which it is enjoyed. If it is a "taking" of the right then, as is well known, different considerations apply. The Uthwatt Committee on Compensation and Betterment, in para. 206 of its Report published in 1942 (Cmd. 6386), summarized the position as follows : -
 

"206. The compensation payable in respect of injurious affection is (apart from the special provisions applicable under certain Acts) assessed upon one principle where no lands are taken from the claimant and upon an entirely different principle where lands are taken from him. ..."

(b) The 1995 authorisation permanently extinguished the applicant's proprietary rights over the foreshore and sea-bed abutting Lot 22. This was acknowledged by Government and is in any event clearly the intent of s. 10(1) of the Ordinance which reads :
 

"Subject to section 17, upon the publication of a notice of authorisation in the Gazette under section 9(1)(b) -
 

(a) all the public and private rights in relation to the foreshore and sea-bed affected thereby shall be extinguished and cease to exist; and

(b) no person shall have any right against the Government or any other person to compel or restrain anything authorized under section 7, 8(1)(b) or 8(1)(c).

(c) There was therefore, arising out of the 1995 authorisation, a 'lawful deprivation' of the applicant's property and, as such, that deprivation was subject to the constitutional safeguards contained in art. 105 of the Basic Law.

(d) The Ordinance, however, pursuant to s. 11, provides that the applicant's right to compensation is limited to its rights under s. 12(1). It has no other statutory route open to it. S. 12(1), to cite it again for convenience, reads :
 

"Any person who claims that his interest, right or easement in or over such foreshore and sea-bed will be injuriously affected by the reclamation may deliver to the Director a written claim stating the sum of money which he is willing to accept in full and final settlement of his claim together with such particulars as he may possess to substantiate the claim and shall furnish to the Director such accounts, documents and further particulars as the Director may request him to furnish, in support of the claim.[my emphasis]"

(e) S. 12(1) makes provision for the award of compensation when a proprietary right is injuriously affected, it makes no separate provision for the award of compensation for the 'taking'; that is, the deprivation of property.

(f) The Government has maintained that s. 12(1) therefore looks to the term 'injuriously affected' as implying damages in respect of an adverse affect on land. Accordingly, it has maintained that it may, for example, take into account any betterment arising out of proposed works.

(g) The core constitutional issue, therefore, is whether s. 12(1) of the Ordinance is consistent with art. 105 of the Basic Law. The question may be put : if it is held that the 1995 authorisation deprived the applicant of property (as opposed to merely injuriously affecting that property), is s. 12(1) to be read as protecting the applicant's constitutional rights under art. 105 or is it to be read, as the Government submits, as offering damages only for an adverse effect on land? If it is the latter then s. 12(1), which is the only statutory means available to the applicant to claim compensation, is inconsistent with art. 105 and to that extent must be invalid.

42. I would agree that this does raise (potentially) a constitutional issue. But the Lands Tribunal has the jurisdiction to determine the constitutionality or vires of statutory provisions relevant to its own jurisdiction. In Commissioner of Rating & Valuation v Agrila Ltd & Others (2001) 4 HKCFAR 83 the Court of Final considered matters that had come before the Lands Tribunal relating to the Basic Law without any suggestion that the Tribunal had no power to deal with them.

43. Mr Chang accepted that there is no provision in our law for the reservation of constitutional issues to a special constitutional court. If constitutional issues arise in the course of a hearing, no matter the level of the court, it is for that court to determine the issues. At first blush, therefore, it would seem that the matter should proceed to the Lands Tribunal to enable that tribunal to determine compensation having first determined any necessary constitutional issues.

44. But the difficulty, according to Mr Chang, is that if the Lands Tribunal finds that s. 12(1) of the Ordinance is inconsistent with art. 105 of the Basic Law, then it will at the same time deprive itself of the jurisdiction to measure and award compensation under the Ordinance. This, he said, is because the Lands Tribunal is a creature of statute. It is established in terms of the Lands Tribunal Ordinance, Cap. 17, its jurisdiction set in s. 8, the relevance portion reading :
 

"(1) The Tribunal shall have jurisdiction to determine the amount of compensation (if any) payable by the Government in respect of any claim submitted to it under any Ordinance specified in the Schedule.

(2) The Tribunal shall have jurisdiction to determine the amount of compensation (if any) payable by the Government in respect of any claim submitted to it under an Ordinance other than an Ordinance specified in the Schedule if -
 

(a) the claim arises from any action taken by or on behalf of the Government in connection with -
 

(i) the compulsory acquisition of land or any interest therein;

(ii) the extinguishments or variation of any rights pertaining to land. ...

45. The schedule referred to in s. 8(1) includes the Ordinance. Accordingly, if the Lands Tribunal finds s. 12(1) of the Ordinance to be inconsistent with the Basic Law, there being no other section in the Ordinance in terms of which compensation may be claimed, the Lands Tribunal will strike down the single vehicle of its jurisdiction under that Ordinance to award compensation. That will, in turn, effectively deprive the applicant of the right to claim compensation, a right underpinned by the Basic Law.

46. Mr Chang submitted that the Lands Tribunal is not, therefore, the appropriate court to deal with the constitutional issues in this matter because it is a forum of limited remedies, the remedies that it does possess being insufficient in the present case to guarantee the constitutional rights of the applicant. By contrast, this Court, in the exercise of its inherent jurisdiction, has broader powers 'to fashion a satisfactory remedy' if it is found that s. 12(1) of the Ordinance is inconsistent with art. 105 of the Basic Law and is therefore invalid.

47. As to whether this Court should accept jurisdiction in this matter, Mr Chang emphasized that the existence of an alternative forum is not per se decisive. That, of course, I accept, certainly where there is within the alternative forum no equally effective or convenient remedy available.

A consideration of the constitutional issue

48. By the end of the hearing it was apparent that the application for the judicial review was based on a limited constitutional issue. Mr Fok SC, leading Counsel for the respondents, identified that issue in the following question : 'If s. 12(1) of the Ordinance is unconstitutional, does the Land Tribunal have jurisdiction to give the applicant its full measure of compensation? That, in my view, is one of several ways of accurately summing up the issue. But, as Mr Fok emphasized, no decision of public law regarding the jurisdiction of the Lands Tribunal is identified in the notice of application for leave. Nor is any relief claimed concerning that jurisdiction.

49. That leads to the critical question of what decision or decisions in reality have been challenged in the application for judicial review.

50. As I have said earlier, I am satisfied that the decisions of the Director which are challenged are not decisions at all, certainly not in the public law sense, any more than the submissions made by Mr Chang and Mr Fok during the hearing may be called decisions. As for the decisions of the Chief Executive-in-Council, their lawfulness is not challenged. What is sought in respect of those decisions are declarations that will quash the Director's assertions - for that is all they are - as to how compensation may be assessed.

51. If any decision is to be the subject of review, it seems to me that it is the possible future decision of the Lands Tribunal as to the constitutionality of s. 12(1) of the Ordinance. For, in plain language, the applicant's submissions may, I believe, be expressed thus : 'What if the Lands Tribunal finds that s. 12(1) is inconsistent with the Basic Law and concludes as a result that it has no jurisdiction to consider a claim for compensation under the Ordinance? To avoid the possibility of that happening, this Court should intervene before the Lands Tribunal has heard the matter to reserve to itself the determination of the constitutional issues and, if necessary, to fashion a remedy to ensure the applicant receives compensation.'

52. The first difficulty with those submissions, as I see it, is that this Court is asked to exercise some form of 'anticipatory' jurisdiction; that is, to step in now in case the Lands Tribunal should find it has no jurisdiction. But this Court has no power to usurp the jurisdiction of the Lands Tribunal, it being remembered that the legislature has determined that the Tribunal has exclusive jurisdiction in determining matters relevant to compensation in this type of case.

53. It seems to me to be misconceived to suggest that this Court can assume jurisdiction on the basis that an inferior court or tribunal may in the future make a decision that will deprive an applicant of compensation. This Court does not act as an advisory court to anticipate future constitutional problems that may face inferior courts or tribunals.

54. In summary, it is apparent that the applicant does not in substance seek to challenge the lawfulness of any of the decisions identified in its notice of application. Instead it seeks the assistance of this Court because it is afraid that in light of the Government's legal arguments there is a risk that, when the matter comes before the Lands Tribunal, that Tribunal will make rulings of a constitutional nature which will deny the applicant compensation or its full measure of compensation. But the fact is that the Lands Tribunal has not yet made any such determination. If it does so then, it seems to me, and only then will there be issues which may invoke this Court's jurisdiction (or that of the Court of Appeal).

55. What must be remembered is that the Lands Tribunal is given exclusive jurisdiction under the Ordinance because it is a specialist tribunal, its expertise extending to all matters relevant to the lawfulness of assessing compensation. It is well equipped to deal with the concerns raised by the applicant.

56. In any event, if this Court does exercise some form of 'anticipatory' jurisdiction and does find that s. 12(1) is inconsistent in all respects with art. 105 and is therefore invalid, what sort of remedy is to be fashioned? This Court has no primary jurisdiction to assess compensation itself but nor could it remit the matter to the Lands Tribunal for determination when that court, by reason of the findings made in respect of s. 12(1) has no jurisdiction. In short, this Court is limited in its powers too.

57. In the course of his submissions, Mr Fok said that the fact that the applicant has pursued its Lands Tribunal application and has commenced steps to constitute a further application before that tribunal is a clear indication that there is nothing that the applicant is seeking to argue in its judicial review that it cannot pursue before the Tribunal. This plainly shows an available alternative remedy. I agree. Against that, it is argued that exceptional grounds exist which demand that this court asserts its constitutional jurisdiction now to protect the rights of the applicant. But, as I have said, this court has no exclusive constitutional jurisdiction. It seems plain to me that, the application for compensation in terms of the Ordinance having been instituted for hearing by the Tribunal, the Tribunal should at first instance determine the matter. I am unable to find grounds upon which it may be argued that this Court should assume some form of 'anticipatory' or advisory jurisdiction.

Conclusion

58. In the circumstances, having heard argument, and employing the test stated at the beginning of this judgment, I am satisfied that the leave granted on 14 March 2002 to the applicant to apply for judicial review must be set aside. I have reached that decision on the basis that, in my view, as beguiling and sophisticated as Mr Chang's submissions may have been, no basis whatsoever can be demonstrated (even on the basis of potential arguability) for invoking this Court's supervisory jurisdiction at this time.

59. No decision has been identified (other than a potential decision of the Land's Tribunal) which may found this Court's jurisdiction. In addition, manifestly, the legislature has obliged the applicant to seek its remedy in the Lands Tribunal and, in my view, it cannot at this time be argued with any prospect of success that that exclusive jurisdiction should, even as to matters of constitutional determination, be imported into this Court.

60. The leave granted on 14 March 2002 is therefore set aside.

61. There will be an order nisi for costs in favour of the respondents, that order to be made final within 30 days if no earlier application is filed to argue the matter.
 
 
 

(M. J. Hartmann)
Judge of the Court of First Instance
High Court
 
 
 

Mr Denis K.L. Chang, SC leading Mr Johannes Chan, instructed by Messrs Wilkinson & Grist, for the Applicant

Mr Joseph Fok, SC leading Mr Anderson Chow, instructed by Department of Justice, for the 1st, 2nd & 3rd Respondents