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Policy guidelines – Hong Kong Science and Technolog y Parks Corporation – Rejection of applications for industrial site Administrative Law – Unlawful subdelegation – Delegation to committee – Whether decision taken by management without authority –Hong Kong Science and Technology Parks Corporation Ordinance (Cap 565) s 11(1)(a)(iii), (3)

WISE UNION INDUSTRIES LTD v HONG KONG SCIENCE AND TECHNOLOGY PARKS CORP
[2010] 1 HKC 60

Court of First Instance
Constitutional and Administrative Law
List Nos 12 and 13 of 2009
Andrew Cheung J
21, 22 September, 13 October 2009

John Bleach SC, Stewart Wong and Elizabeth Cheung (Robin Bridge and John Liu) for the applicants.
Joseph Fok SC and Yvonne Cheng (JSM) for the respondent.

The applicants (Wise Union Industries Ltd and Champion City
Industrial Limited) each applied to the respondent for an industrial site under its management for the setting up of an asphalt cum concrete batching plant and an asphalt recycling and concrete waste management plant respectively. The respondent was a statutory corporation and its purpose was to facilitate the research and development and application of technologies in manufacturing and service industries in Hong Kong; and to support the development, transfer and use of new or advanced technologies in Hong Kong.

The respondent’s board delegated to a committee powers to consider and decide each application for an industrial site made to the respondent based on the applicable policies and admission criteria of the respondent in relation to grant of industrial sites without further reference or recourse to the board itself. The committee applied a standing policy against admitting concrete batching plants and asphalt plants and refused the applications. The applicants applied by separate proceedings for judicial review of the respondent’s respective decision.

Held, dismissing the application of Wise Union Industries Ltd but
granting the application of Champion City Industries Ltd:

A decision-maker with whom a discretion had been entrusted may legitimately adopt a policy to guide his exercise and implementation of the discretion. However, he must not allow his policy to ‘fetter’ his decision. In other words, he must not apply his policy blindly and rigidly. The policy must not preclude the decision-maker from departing from it or from taking into ccount circumstances and merits of the particular case in question. He must always be willing to listen to anyone with something new to say. The policy adopted must fairly admit of exceptions to it. There had to be ‘an exceptions procedure worth the name’. The policy which, on the face of it, did not preclude the decision-maker from departing from it or from taking into account the merits of any particular case, must not be implemented as if it were such a policy.

The respondent’s policies relating to concrete batching and asphalt production did not conflict in any way with its statutory duty. It was entitled to take the view that the policies were appropriate as the mix and balance of industries accommodated in the industrial estates was a matter that lay exclusively within its judgment. It was to decide within the scheme of the Hong Kong Science and Technology Parks Corporation Ordinance (Cap 565) how the limited amount of space in the existing industrial estates should be filled. It was entitled to consider grouping construction-related industries in the proposed fourth industrial estate which may be more suitable for those industries, and to impose the policies in the meantime. The policies promoted consistency of treatment and therefore fairness, as well as administrative efficiency.

Wise Union Industries Ltd (Wise Union) had not made out a case of a rigid adherence to the relevant policies on the part of the committee of the respondent in rejecting its application. In relation to Wise Union’s application there was no complete policy covering the proposed project and the committee would have to consider on its own the part of the project not covered by a preexisting policy. The paper prepared by the respondent’s management for the committee’s meeting showed that there was a willingness to consider Wise Union’s application on its merits. The evidence before the court also showed that the application of Wise Union had been examined by the committee on its merits. The considerations taken into account were those that the committee was entitled in its wide discretion to take into account.

The application of Champion City Industries Ltd (Champion City) must succeed. While the Hong Kong Science and Technology Parks Corporation Ordinance s 11(3) provided that where the board of the respondent made a delegation, it may at the same time authorise, among others, the committee to whom the delegation was made, to sub-delegate the function delegated; the board had not in fact authorised the committee to sub-delegate its power to determine applications for tenancy to anybody, including the management of the respondent. However, Champion City’s application was handled throughout by the management and had never reached the committee for decision. The decision to reject the application was made by the management and communicated on behalf of the management to Champion City. The management had no authority to decide the application. Further, the substance of Champion City’s application involved questions of whether, and to what extent, the policies of the committee would apply and were not administrative or clerical matters that one could safely leave in the hands of an agent or servant to decide, assuming that one could legitimately do so.