Court of Final Appeal rules against government in Country Park enclave case

^{Hoi Ha Wan}

The Court of Final Appeal has ruled against the government in its appeal against the Court of Appeal’s judgement that the Country and Marine Parks Board must consider the inclusion of enclaves into the Country Parks. This will affect the future of six enclaves – Hoi Ha, Pak Lap, To Kwa Peng, So Lo Pun, Tin Fu Tsai and Pak Tam Au.

Environmentalist Chan Ka-lam, the founder of Save Our Country Parks Alliance, brought her case to the city’s top court, after the Court of First Instance and the Court of Appeal both earlier ruled against her.

A five-judge panel comprising of Chief Justice Geoffrey Ma, Justices Roberto Ribeiro, Joseph Fok, Andrew Cheung, and Lord Sumption unanimously allowed the appeal.

A summary of the judgement is given below:

1. In May 2011, as part of the government’s measures to protect country park enclaves, the Respondent prepared a working paper (“the Working Paper”) for the consultation and advice of the Country and Marine Parks Board (“the Board”). The Working Paper provided for an action plan to assess the suitability of including 54 enclaves into their surrounding country parks or for protection by other measures (“the Assessments”) based on a new set of criteria. Of the enclaves assessed, 6 of them were deemed not appropriate for inclusion into their surrounding country parks (“the 6 Enclaves”).
2. The Appellant applied for judicial review in respect of the Respondent’s decision not to consult the Board when determining that the 6 Enclaves should not be incorporated into their surrounding country parks (“the Decision”). Under section 5(1)(b) of the Country Parks Ordinance (Cap 208) (“the Ordinance”), the Board “shall … consider and to advise the [Respondent] on, the policy and programmes prepared by the [Respondent] in respect of country parks and special areas, including proposed country parks and special areas”.
3. The Court of First Instance held that the words “policy” and “programmes” refer to the formulation of principle (as policy) and the making of plan or scheme (as programme) on a high level of generality. It held that the Assessments were neither “policy” nor “programmes” in respect of country parks.
4. The Court of Appeal dismissed the Appellant’s appeal. The fact that the Assessments were conducted with the same approach and with the same set of criteria did not mean that each should be viewed together to form a programme.
ISSUES
5. The Appellant appealed to the Court of Final Appeal on two questions of law. First, under what circumstances does the Respondent have a duty to consult the Board? Secondly, to what extent, if any, does the Respondent have a duty to consult the Board regarding the Assessments?
DECISION
6. The Court unanimously allowed the appeal. The Decision was quashed and the Respondent was required to consult the Board on the suitability of incorporating each of the 6 Enclaves into their surrounding country parks.
REASONS
7. Section 5(1)(b) of the Ordinance must be interpreted by reference to its context and purpose. The respective functions of the Respondent and the Board are clearly set out in the Ordinance and overlap in relation to the designation of areas as country parks. There exists a clear link between the duty of the Respondent in relation to designating or not designating areas as country parks and the participation of the Board in this matter. The Respondent and the Board are the only relevant persons involved in determining whether an area should be recommended to the Chief Executive for designation as a country park.
8. The word “policy” refers to a course or set of general principles that guides or points the way towards an objective. On the other hand, the word “programme” is more specific. It refers to a plan of action, a project or scheme, or a series of intended activities, events or future actions to implement a policy. It is not limited to mean only a plan or outline of those matters. It is capable of referring to intended activities, events or actions themselves. Read together, “policy” and “programmes” indicate the range of matters on which the Respondent must consult the Board under section 5(1)(b) of the Ordinance. Whether something falls within a “policy” or “programme” depends on the facts of each case.
9. A policy or programme is “in respect of” country parks if it involves something to do with country parks, whether if actual or proposed.
10. The assessment of enclaves for the purposes of designation of country parks by reference to the new criteria set in the Working Paper fell within the meaning of “policy”. The Assessments fell within the meaning of “programmes” under section 5(1)(b) of the Ordinance because they were part of a programme to implement the policy protecting the 54 enclaves, which is a programme “in respect of” the neighbouring country parks or “in respect of” proposed country parks. Accordingly, the Respondent is required to consult the Board on whether or not to include the 6 Enclaves into their surrounding country parks.