Ma Yuk Han v. The Urban Council

CACV000192/1996

IN THE COURT OF APPEAL

1996, No. 192

(Civil)

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Coram: Hon Nazareth V.-P., Godfrey and Liu JJ.A. in Court

Date of hearing: 17 April 1997

Date of judgment: 17 April 1997

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J U D G M E N T

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Nazareth V-P:

1. This is an appeal against the order of Sears J made on 9th September 1996 by which he dismissed the application of Ma Yuk-han, the applicant, for leave to apply for judicial review.

2. The facts can be taken from the Notice of Application for leave under O53 r3 of the Rules of the Supreme Court. One Wong Siu-kee entered into a tenancy agreement dated 21st August 1982 with the Urban Council for a mini-stall, No. MN2, at the Lai Wan Public Market for three years from 1st September 1992, thereafter to be a monthly tenancy agreement renewable on a monthly basis.

3. Apparently because Wong Siu-kee had to be out of Hong Kong on a regular basis, the applicant operated the stall for the sale of vegetables with Madam Siu Kwai-ching as the stall operator.

4. Between July 1994 and May 1995 Madam Siu Kwai-ching contravened By-law 9 of the Public Market (Urban Council) By-laws, by placing articles of trade outside the stall which caused an obstruction, no less than four times.

5. I pause here to refer to Clause 18 of the tenancy agreement the Urban Council had with Mr Wong which provided that:

"The Council may by notice in writing to the Tenant immediately terminate this Agreement for any breach by the Tenant or his agent of this Agreement or of any provision of the Public Health and Municipal Services Ordinance, Cap. 132 ..."

6. Warning letters in respect of contravention was sent by the Council addressed to Mr Wong at various times and finally a notice of termination on 18th December 1995. The applicant then appealed to the Review Select Committee which dismissed the appeal and thereafter on 30th August 1996 the applicant lodged a Notice of Application for leave to apply for judicial review.

7. The sole ground upon which that application was made was that the decision made by the Urban Council to terminate the tenancy agreement was unreasonable. The application requested an oral hearing. It came before Sears J. He dismissed it and gave the following reasons for refusing leave:

"1. I have serious doubts whether the Applicant has sufficient 'locus'.

2. I assume in her favour, that she has, but this application does not pass the threshold test. The factual grounds set out the convictions and warning letters. I can see no flaw in the process of decision, nor do I consider there exists any of the well known grounds for challenging the decision."

The applicant then appealed to this Court. The notice of appeal contains only one ground which is expressed in this way:

"That the learned Judge erred in coming to the conclusion that the decision of the Review Select Committee of the Urban Council dated 31st July 1996 dismissing the Applicant's appeal against a decision of the Urban Services Department, Urban Council dated 18th December 1995 that the month to month tenancy agreement held with the Urban Council in respect of mini-stall no. MN2 in Lai Wan Public Market be terminated under Clause 6 of the By Laws Cap. 132 Laws of Hong Kong was not reached upon a bias against the Applicant."

I must confess that having referred to the Notice of Application for leave to apply for judicial review and to the notice of appeal I found some difficulty in understanding what the ground of appeal was. But before us today, Mr Wong Chao-wai, who appears for the applicant, has clarified the applicant's ground. It can be shortly stated thus. The Urban Council has a policy it applies in the matter of terminating tenancy agreement by reference to conviction under the Market By-laws. The applicant's case is that notice of this was only received for the first time in May 1995 and that the actual policy document was handed to Madam Ma in the course of the hearing of the appeal to the Select Review Committee. However that may be, the document which is both in English and Chinese reads thus:

"	Council's Policy on Termination of Tenancy Agreement
	on account of Market Offences (Ref. USD HQD 5/601 II)

Under Council Policy, offenders who have had 4 convictions within a period of 12 calendar months for offences in contravention of the Public Health and Municipal Services Ordinance, Cap. 132 or its subsidiary legislations are liable to termination of their Tenancy Agreements.

2. For the purpose of counting convictions:

(a) multiple contraventions committed on the same date but convicted on different dates will be counted as one conviction;

(b) contraventions committed on different dates but convicted on the same date will be counted as different convictions, and

(c) in calculating the 12 month period requirements, the dates of offences leading to convictions are relevant, and not the dates of convictions."

8. Reverting to the applicant's submission, it is submitted that this document reflects only part of the policy of the Urban Council on that matter, and that contention is founded upon the first paragraph of the policy document having no number. Therefore, the argument goes, it begins with paragraph 2 and the inference must be that the policy considers of other matters.

9. To strengthen this submission it is also said that it is not signed by any one and there is no reference to any authority, both of which suggest it is incomplete. That, I think is not quite correct because in the heading there is a USD reference which is most likely to be a reference to such authority.

10. This contention in any case is an essential plank, in fact it is the factual basis of the applicant's contention and submission. For upon it is made the claim that only half or part of the policy was disclosed to Madam Ma. It is submitted that she thereby was not notified of the case she had to meet and therefore was not able to present her response to it. There might have been other considerations which she could have relied upon or addressed and so forth. It is submitted further that therefore the proceedings before the Review Select Committee were flawed by procedural impropriety. But as I have said, all this founds upon the premise that only part of the relevant Urban Council policy was disclosed. Accordingly that submission, in my view, cannot succeed. There is no basis to support it. It is entirely speculative and cannot found the submission. Furthermore, in the Urban Council letter notifying Mr Wong of the Review Select Committee's decision, this was said:

"The Review Select Committee had at its meeting on 18.7.96 fully considered the grounds for the review given by Madam MA, and decided that the previous decision to terminate the said temporary monthly tenancy be upheld."

There is no reason to suppose that the Review Select Committee did not address all the matters it should have. In those circumstances I find there is nothing in the applicant's submission and only ground relied upon.

11. Upon that basis, in my view, the appeal must fail. I do not find it necessary to refer to other grounds upon which the appeal might be equally untenable.

12. For the reasons I have given I would dismiss the appeal.

Godfrey, JA :

13. It appears that the applicant, Ma Yuk Han, carried on the business of a vegetable stall here for her own benefit, although she was not herself the tenant of the stall, and that the respondent has been prepared to tolerate this state of affairs. In these circumstances, I am prepared to assume in her favour, as did the judge, that the applicant had sufficient locus standi to apply for a judicial review of the decision of the Review Select Committee not to interfere with the respondent's termination of the tenancy of the stall.

14. Further, I would accept the submission made on the applicant's behalf that, having been given a hearing before the Review Select Committee, she was entitled to a fair hearing. But there is not a shred of evidence that she did not receive a fair hearing. The letter from the respondent to the tenant dated 31 July 1996, and copied to the applicant, recording the Committee's decision, states that the Committee had, on 18 July 1996, "fully considered" the grounds for review given by the applicant. None of the material before us casts doubt on this. The facts that it was the policy of the Council not to seek to determine a stall holder's tenancy after one, or two, or even three convictions under the public health and municipal services legislation, but to refrain from doing so until the stall holder or operator had chalked up four convictions, and that the applicant may not have been aware of this policy (there is no evidence of any other policy) until after the date of the fourth conviction, do not, as it seems to me, make the hearing that she received in any way an unfair one.

15. For these reasons, I, too, would dismiss this appeal.

Liu JA:

16. The ambit of this appeal is narrow. I agree with the conclusion of the Vice President for the reasons he gives.

Representation:

Mr Wong Chao-wai (M/s Ivan Tang & Co) for the Applicant

Miss Jenny Fung (AGC) for Respondent