Appeal judges have thrown out a bid by a villager in Tuen Mun for a judicial review that, if successful, could have stopped the construction of a vital weather radar station in its tracks.
In a judgement released Wednesday, the Court of Appeal rejected an appeal against an earlier decision in the Court of First Instance where the judge refused to grant leave to apply for a judicial review of a decision by the Director of Hong Kong Observatory to not entertain villagers’ concerns of alleged adverse fung shui effects arising from the radar station.
Justice Barma said he agreed with the reasons given by Justice Lam of the lower court in September last year.
Among Lam’s reasons were that the Director had made it “crystal clear” in a letter to villagers in August 2010 that the site had been chosen as the location for the radar station, that an application for a judicial review of the decision was made far too late and there were no merit in the suggestion that the Director was still open to considering alternative locations.
“The application for leave to bring judicial review proceedings was therefore entirely unmeritorious, with the consequence that no extension of time should have been ordered,” Barma wrote.
As to legal costs, the counsel for the applicant argued that his client should not pay costs on indemnity basis because the matter was of importance to villagers as they were concerned only with the adverse impact to the fung shui of the village.
Instead the right of appeal should carry greater weight.
Barma disagreed, saying: “The fact that a party has a right of appeal is not a reason for exercising it in a hopeless case. To do so is wasteful both of the court’s time, and of the time and resources of the respondent who is forced to resist the appeal.”
The applicant, Ben Wu Yuk-wah, was ordered to pay the Director’s costs.
The radar station is a Terminal Doppler Weather Radar and is able to detect hazardous windshear which is vital to ensuring aviation safety.
In a paper submitted to the Public Works Subcommittee of the Finance Committee of the Legislative Council in December 2011, the Commerce and Economic Development Bureau said the Hong Kong Observatory needed to replace and upgrade the meteorological equipment, including the existing weather radar, to maintain aviation weather services.
The present one, in operation since 1998, was approaching the end of its functional life.
After a search in 2006 and 2007 involving over 20 sites, the site on a knoll north of Tuen Mun Road near Brothers Point in Tai Lam Chung in Tuen Mun was considered the most suitable, having satisfied all technical criteria such as unobstructed view to the airport and at a height of 40 to 130 metres above mean sea level.
In January last year, the Finance Committee approved funds totalling HK$175.7 million at money-of-the-day prices for the project which included construction of a single-storey station building and auxiliary building and a new access road of length 305 metres by extending an existing waterworks access road.
The paper said the government had explained to villagers that the electro-magnetic radiation from the station would not pose a health threat.
The positioning and size of the station were also modified to present the least visual impact to villagers.
As to fung shui issues, the paper said it would pay “Tun Fu” ex-gratia allowance to villagers to cover the costs of holding a religious ceremony prior to construction, in accordance with established policy.
Since the 1960s, the government has been paying “Tun Fu” allowances to cover items in the ceremony such as the Tun Fu master’s fee, purchase of joss papers and sticks and food to be offered in the ceremony.
The Architectural Services Department awarded the project to Sun Fook Kong Construction in May last year for a contract sum of HK$112.7 million.
According to a notice posted in the village when Construction Post visited Tam Lam Chung on Thursday, villagers had raised HK$374,420 in funds for their campaign against the radar station.
Expenditure however totalled HK$401,500 for items such as legal fees which totalled HK$380,000.
In a last ditch effort last year to convince the Director to relocate the station, villagers even took the step of commissioning a fung shui report and submitting it to the Director in a meeting last June.
In his judgement, Barma dismissed the fung shui report saying it simply asserted the impossibility of ameliorating the adverse fung shui impact of the station and contained nothing of relevance to the Director.