[1983] HKLR 28

Administrative and constitutional law - Crown lands resumption - the

Governor is not required to give prior notice or an opportunity to make representations before
ordering resumption pursuant to the Crown Lands Resumption Ordinance, Cap. 124, s. 3.
Property Law - Crown lands resumption - the Governor is not required to
give prior notice or an opportunity to make representations before ordering resumption
pursuant to the Crown Lands Resumption Ordinance, Cap. 124, s.3.

The applicants were the Crown lessees of certain lands in Causeway Bay. The Governor ordered the
resumption of the lands pursuant to section 3 of the Crown Lands Resumption Ordinance Cap. 124. In
these proceedings it was complained that the resumption order had been made without prior notice to
the applicants. This. it was said. was contrary to the rules of natural justice. The applicants sought
certiorari to quash the resumption order. mandamus to provide them with an opportunity to make
representations and a declaration that the resumption order was null and void. Counsel for the Crown
opposed arguing that the Governor s power to order resumption was not subject to the rules of natural
justice.

Held:

1. The Hong Kong law of compulsory acquisition of land was materially different
from that of the United Kingdom.

2. (Per Mayo J.:) Section 9 of the ordinance, which provides that no action shall lie for
any loss suffered as a result of the resumption of land, bars a claim of this type.

3. (Per Curiam.) The applicants had no right to a hearing.

(Per Mayo J.:) The correct approach to a case like this was first to inquire what is the
nature of the discretion which is being exercised. In this case it was purely administrative.
Therefore the Governor, in exercising his powers under section 3 of the ordinance, was not
subject to the rules of natural justice, but merely to a duty to act fairly. The duty to act fairly did
not include a requirement of giving notice. By the same token the Governor had no obligation to
entertain representations in respect of the resumption of land. (Per Hunter and Mantell,
JJ.:) The correct approach was to consider the true construction of the ordinance as a whole. In
this case there were a number of indications in the ordinance which individually and collectively
pointed strongly against the applicants' contention. In particular:
(a) the legislative direction in section 3 that the Governor consult the Executive Council
could be read as a direction to consult only the Executive Council;
(b) section 4 provides for notice to be given after the Governor has acted under section 3;
(c) section 11(1)(b) suggests that the notice under section 4 is to be the first notice;
(d) sections 9 and 19 suggest that the Governor's decision is to be final and inviolate;
(e) a decision to resume land may involve questions of high public policy making it desirable
that the Governor and the Executive Council consider the matter undisturbed by the lobbying of
those directly affected;
(f) prior consultation as contended for by the applicants could well hare undesirable
publicity consequences; and
(g) if fairness required that the Governor consult the owners of a site prior to ordering its
resumption, then in cases where there was a choice between two or more sites it would require
that he consult the owners of them all. This could not be implied or read into the ordinance.

Applications dismissed.

IN RE APPLICATION BY K.O.Y. INVESTMENT CO. LTD. AND OTHERS [1983] HKLR 28, 17th
December 1982, High Court, Mayo, Hunter & Mantell, JJ. (Full Bench)