MAN SHIN KANG TONG AND ANOTHER v. THE ATTORNEY GENERAL AND ANOTHER

MAN SHIN KANG TONG AND ANOTHER v. THE ATTORNEY GENERAL AND ANOTHER

Section 5 is directory not mandatory; 'temporary easement' was a drafting misuse but, read in context and substance, the scheme and the Section 15 order validly authorised temporary occupation incidental to the works including infilling the pond; the plaintiffs' challenge therefore fails and the Order of 24 July...

Source-derived case information.

Citation
MAN SHIN KANG TONG AND ANOTHER v. THE ATTORNEY GENERAL AND ANOTHER
Parties
1st Plaintiff: Man Shin Kang Tong; 2nd Plaintiff: Man Tsui In Tso; 1st Defendant: The Attorney General; 2nd Defendant: Korea Shipbuilding & Engineering Corporation
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
29 April 1986
Case Number
HCMP237/1986
Procedural Posture
Statutory Challenge / Judicial Review of Administrative Order / High Court Judgment on Originating Summons (validity of Section 15 Orders)
Outcome
Originating summons dismissed; plaintiffs' challenges to the Section 15 orders dismissed; Order of 24 July 1985 upheld
Legal Topics
Temporary Easement V Temporary Occupation, Validity and Scope of Administrative Orders, Directory V Mandatory Statutory Requirements, Available Remedies and Statutory Bars (ss.25 26)
Source Language
en
Administrative Law Property Law Statutory Interpretation Land Acquisition / Public Works Temporary Easement V Temporary Occupation Validity and Scope of Administrative Orders Directory V Mandatory Statutory Requirements Available Remedies and Statutory Bars (ss.25 26)

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 6 Party arguments 2
Sign in to unlock

Parties

Man Shin Kang Tong

1st Plaintiff

Man Tsui In Tso

2nd Plaintiff

The Attorney General

1st Defendant

Korea Shipbuilding & Engineering Corporation

2nd Defendant

Procedural Posture

Statutory Challenge / Judicial Review of Administrative Order / High Court Judgment on Originating Summons (validity of Section 15 Orders)

Legal Issues

  1. 1 Whether phrase 'temporary easement' is legally coherent under Cap.370
  2. 2 Whether the Section 15 order of 24 July 1985 was ultra vires the scheme published under Section 5
  3. 3 Whether Section 5 requirements are mandatory or directory and consequences of non‑compliance

Ratio Decidendi

Section 5 is directory not mandatory; 'temporary easement' was a drafting misuse but, read in context and substance, the scheme and the Section 15 order validly authorised temporary occupation incidental to the works including infilling the pond; the plaintiffs' challenge therefore fails and the Order of 24 July 1985 is upheld.

Court Disposition

Originating summons dismissed; plaintiffs' challenges to the Section 15 orders dismissed; Order of 24 July 1985 upheld

Orders

  • Claim dismissed
  • Order under Section 15(1) and Section 15(3) dated 24 July 1985 upheld as valid