Lui Yuet Tin v. Commissioner for Transport

HCAL 42/2014

[2018] HKCFI 934

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 42 OF 2014

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Before: Hon Au J in Court

Date of Hearing: 19 February 2016

Date of Judgment: 30 April 2018

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J U D G M E N T

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A.   INTRODUCTION

1.In August 2000, a pedestrian scheme (“the Scheme”) was implemented by the Transport Department (“the TD”) (as initiated by the Administration) in certain parts of Mong Kok, known as the Mong Kok Pedestrian Precinct (“the MKPP”).  The Scheme covers certain section of Sai Yeung Choi Street South (“SYCSS”), section of Nelson Street, and section of Soy Street.  I will refer to these sections of these streets collectively as “the Streets”.

2.After a few revisions since its implementation, by January 2014, the Scheme was implemented from Mondays to Saturdays from 4pm to 10pm, and Sundays and General Holidays from noon to 10pm.  In other words, during these times, the Streets were closed to vehicular traffic.

3.At the same time, since 2008, the Yau Tsim Mong District Council (“the YTMDC”) had received many complaints about the noise, obstruction and nuisance caused to nearby residents and shop as a result of proliferation of street performers, illegal hawking and other commercial activities (such as promotion booths, photo-taking, easy-mount frames) at the MKPP.  A member of the YTMDC, Mr Chow, proposed to the Traffic and Transport Committee (“the T&TC”) of the YTMDC in a meeting in July 2013 to reduce the implementation time of the Scheme.  Since then, the Yau Tsim Mong District Office (“the YTMDO”) had been working with the TD to look into the question of whether and to what extent the Scheme’s implementation time could be reduced.

4.On 17 January 2014, after taking into account assessments carried out by the TD and the result of surveys conducted by the YTMDO, the Commissioner of Transport (“the Commissioner”) published a notice (“the Gazette Notice”) in the Gazette of his decision (“the Decision”) to reduce the implementation time of the Scheme to only Saturdays from 4pm to 10pm and Sundays and General Holidays from noon to 10 pm.  In other words, the Streets would be opened to vehicular traffic on all Mondays to Fridays.

5.The applicant is a street performer at the MKPP. This is his judicial review seeking to challenge the Decision.

B.   BACKGROUND

6.The Scheme, intended to serve the objectives of enhancing road safety and improving the overall environment for pedestrians, was first implemented in the MKPP in 2000.  It included the full time or part time prohibition or restriction of vehicular access, re-routing of traffic directions and reduction of traffic lanes (which turned the roads in the MKPP to local roads), widening of footpath, improvement on pedestrian crossing facilities, and removal of parking spaces.[1]

7.Since its implementation, the Scheme has been subject to monitoring and reviews by the TD from time to time to ascertain the conditions of pedestrian environment, road safety and traffic flow.  Over the years, depending on the conditions, the implementation periods of the prohibition and restriction of vehicular access in the MKPP had been varied (extended or shortened) a number of times.[2]

8.Since around 2008, there has been a proliferation of various street activities in the MKPP which caused street management problems and attracted various complaints.  Such activities were not originally intended for when the Scheme was initially devised and set up.  The situation was deteriorating in 2013 despite efforts by the Administration to improve the situation.  Discontent of residents and shop operators in the area became more intense (there was a significant increase in the number of complaints in 2013), and they demanded for active improvement measures.[3]

9.In early July 2013, District Councilor Mr Chow Chun Fai (“Mr Chow”) submitted a paper to the T&TC of the YTMDC. He put forward a proposal to reduce the implementation days of the Scheme in the MKPP to only Fridays and Saturdays (4 - 10pm) (“Mr Chow’s Proposal”).  This was discussed at the T&TC meeting held on 18 July 2013 (“the July Meeting”).  In relation to this, at the meeting, Mr Yeung of the TD (“Mr Yeung”) indicated that the TD would carry out studies on the proposal to reduce the Scheme’s implementation time from traffic and transport perspectives.[4] The T&TC at this meeting also made a request to the YTMDO to consult local residents, shops and pedestrians on the proposed reduction of implementation days of the Scheme, and to report the result to the T&TC for further discussions.  Mr Chow’s motion for his proposal was then adjourned to a meeting to be held in November 2013.

10.It is the Commissioner’s case that in late July 2013, Mr Yeung conducted assessments of the impact of the proposed reduction of the Scheme’s implementation days to ascertain whether Mr Chow’s Proposal was acceptable from traffic and transport perspectives.[5] At that time, Mr Yeung was the Engineer/Housing and Planning 3/Kowloon of the Traffic Engineering (Kowloon) Division of the TD.  He was responsible for traffic administration and management works in Yaumatei area, provision of traffic engineering supporting, implementing and monitoring the pedestrian schemes in Kowloon, including the MKPP, carrying out traffic assessments, and handling public complaints and enquiries in relation to the pedestrian schemes.

11.It is also the Commissioner’s case that, upon suggestion from Ms Lee Ching Yee (“Ms Lee”) of the YTMDO,[6] from July to August 2013, Mr Yeung further explored and assessed the viability of other alternative options to reduce the Scheme’s implementation times.  These alternatives included the option to implement the Scheme at the MKPP only on Saturdays (4 - 10pm) and Sundays and General Holidays (noon - 10pm) (ie, the Streets would be open to traffic on all weekdays) (“Option 2”).  In around late August 2013, after assessments, the TD was satisfied that Option 2, if implemented, would be acceptable from traffic and transport perspectives.[7]

12.In the meantime, following the T&TC’s request made at the July Meeting, the YTMDO began the preparation for carrying out a local consultation on the proposed reduction of the Scheme’s implementation time.  The YTMDO considered that the questionnaire for the consultation should contain at least one alternative proposal in addition to Mr Chow’s Proposal.[8]

13.At the same time, a meeting was held on 8 August 2013 attended by, among others, Ms Ho Siu Ping Betty (“Ms Ho”) of the YTMDO,[9] and some street performers and their supporters (including the applicant).  The street performers submitted some written representations to Ms Ho and an attendee requested that public views on those representations should be collected in the forthcoming local consultation.  There was no objection from any attendees to this request.[10]  Eventually, the YTMDO decided to include in the intended consultation questions about street performers.[11]

14.The YTMDO eventually enlisted the service of Hong Kong Shue Yan University (“Shue Yan”) to assist in the conduct of the local consultation.  The questionnaire to be used in the consultation survey was designed with Shue Yan’s advice.[12]

15.The local consultation (consisting of mail survey and street survey) (“the Consultation”) was conducted from 27 September 2013 to 10 October 2013.  The questionnaire used in the Consultation survey included Option 2 as an alternative to Mr Chow’s Proposal (identified as Option 1 in it) for the consultees to indicate their preference if they agreed to reduce the Scheme’s implementation time.

16.The results of the Consultation revealed varying preferences, with a variety of views and opinion.[13] A summary of the results was sent to the TD in late October 2013.[14]

17.On 5 November 2013, it is the Commissioner’s case that in the TD’s half‑yearly performance review meeting (“the TD’s Review Meeting”), having considered, among others, the TD’s aforesaid impact assessments carried out by Mr Yeung and the survey results of the Consultation provided by the YTMDO, the Commissioner directed that Option 2 should be implemented if other concerned government departments and the T&TC also supported the same.[15]

18.Later, a government inter-departmental meeting was held on 14 November 2013, where the Administration reached a consensus to implement Option 2 on a trial basis if the T&TC also supported Option 2.[16]

19.At the meeting held on 21 November 2013 (“the T&TC’s November Meeting”), the T&TC, after discussion, passed a motion to urge the Government to reduce the implementation days of the Scheme at the MKPP as per Option 2.[17]

20.In light of the aforesaid, on 17 January 2014, the Commissioner caused the Gazette Notice to be published about the change of the Scheme’s implementation time (as per Option 2), which took effect on 20 January 2014.[18]

C.   THIS JUDICIAL REVIEW

21.The applicant raises three grounds of judicial review.  They are in summary that:

(1)   The Decision is unlawful as the Commissioner failed to take into account the impact of the change of the Scheme’s implementation time would have on (a) the local traffic and (b) the safety of the pedestrians in the MKPP (“the Relevant Consideration Ground”).[19]

(2)   The Decision is tainted with irregularity as the Commissioner took into account results of the Consultation, which was conducted improperly or unfairly (“the Unfair Consultation Ground”).[20]

(3)   The Commissioner abdicated his decision making power to the T&TC of the YTMDC by rubber stamping their motion to reduce the implementation days as perOption 2 (“the Abdication of Duty Ground”)[21].

22.I will look at these grounds in turn.

C1.   The Relevant Consideration Ground

23.Under this ground, the applicant complains that in making the Decision, the Commissioner did not take into account the impact of the change in the implementation days of the Scheme would have on (a) the local traffic and (b) the safety of the pedestrians, as no such impact assessments had been carried out by the Commissioner.  These are however clearly relevant considerations since the TD has consistently said that the Scheme is one which concerns pedestrian and traffic safety.

24.The Commissioner does not dispute that these are relevant considerations.  However, the Commissioner’s case, as indicated above, is that he had taken these considerations into account when making the Decision.  This is so as Mr Yeung had carried out the necessary and relevant impact assessments and reported the analysis and conclusion to the Commissioner at the TD’s Review Meeting.

25.The evidence in support of the fact that Mr Yeung had carried out these traffic and pedestrian impact assessments has been set out in detail at paragraphs 19 - 21 of his affidavit.[22]  In substance, Mr Yeung deposes that:

(1) After attending the July Meeting of the T&TC, between mid and the end of July, he personally conducted the traffic and pedestrian impact assessments if Mr Chow’s Proposal were to be implemented.  He assessed whether it was acceptable from traffic and transport perspectives to open the Streets at the MKPP to vehicular traffic from Mondays to Thursdays and on Sundays and General Holidays as suggested in Mr Chow’s Proposal.

(2) In making the assessments, he took into account all the related traffic measures and improvement works that had been carried out from 2000 - 2003 under the Scheme (and he has set out those works at paragraph 10 of his affidavit).  These works had enhanced the general pedestrian environment and safety of the Streets.

(3) In assessing the impact on pedestrian flow, he reviewed the related traffic censuses about pedestrian flow of the Streets conducted since October 2008.  Given that the pedestrian flow in SYCSS was the highest of the Streets, he used the traffic censuses conducted in SYCSS on a Wednesday and a Saturday of March 2012 for the purpose of assessing the impact on the proposed reduction of the implementation days of the Scheme in the MKPP.  Having looked at these figures, and applying his professional judgment as a traffic engineer familiar with the area for years, he came to the view that if the MKPP was to be opened to vehicular traffic, the peak pedestrian flow in SYCSS would be around 12,000 to 13,500 pedestrians per hour on Mondays to Thursdays, and around 19,000 to 20,000 pedestrians per hour on Sundays and General Holidays.

(4) Adopting these highest figures on pedestrian flow, and if the MKPP at SYCSS were to be opened to vehicular traffic as suggested under Mr Chow’s Proposal, he worked out (by way of simple arithmetic) that the level of service (“LOS”) at SYCSS would be at “D” level at the peak hour on Mondays to Thursdays, and at the mid-range of level “E” on Sundays and General Holidays. Level “D” is an acceptable level from traffic safety and engineering point of view, while mid-level “E” is not desirable.

(5) In relation to the assessment of the impact on local traffic, he formed the view that the vehicular traffic at the Streets would remain low even if Mr Chow’s Proposal were adopted.  This was so as he anticipated that the traffic characteristics of the Streets would remain the same (in particular given the various improvement and re-routing works done at the MKPP area in 2000 - 2003) even if the implementation days of the Scheme were to be reduced.

(6) In relation to traffic safety, after considering (a) the traffic accident records from August 2008 to December 2011 at the Streets, and at SYCSS from January 2012 to January 2013; (b) that the traffic characteristics of the MKPP at the Streets would remain unchanged; (c) that the pedestrian environment and safety had been enhanced by the widened footpaths and improved pedestrian crossings; (d) that there were no accident black sites in the MKPP at the Streets; (e) that the vehicular traffic at the Streets was anticipated to remain low; (f) that the traffic speed was low; and (g) that the streets concerned were straight with good sightline, he came to the professional view that the traffic safety condition would be acceptable if the Streets were opened to vehicular traffic.

(7) Having considered all the above assessments together, he further came to the view that it would be acceptable to open the Streets at the MKPP to vehicular traffic on Mondays to Thursdays, as the pedestrian environment would be acceptable and the pedestrian safety would not be undermined after reducing the implementation days of the Scheme.  He also formed the view that it would be more desirable to maintain the Scheme on Sundays and General Holidays to achieve a better pedestrian environment.

26.Mr Yeung then further deposes to at paragraphs 22 to 42 of his affidavit in detail on (a) how he eventually formed the view that the suggested reduction of the implementation time of the Scheme under Option 2 (that is, the Streets at the MKPP should be opened to vehicular traffic on all weekdays, from Mondays to Fridays) was acceptable from traffic and transport perspectives, and (b) how that was eventually endorsed by the Commissioner.  The evidence is in gist that:

(1) At the end of July 2013, Ms Lee emailed Mr Yeung a draft questionnaire and the suggested scope of the mail survey for his comments.  The draft questionnaire contained, among others, two proposals of reducing the implementation days of the Scheme in the MKPP.  One of these was Mr Chow’s Proposal, and the other alternative (“the Suggested Alternative Option”) was that the Scheme would be implemented only on Saturdays, Sundays and General Holidays from noon to 10pm (ie, the Streets would be open to vehicular traffic on all weekdays).

(2) Mr Yeung then carried out his assessment from traffic safety and pedestrian flow perspectives on the Suggested Alternative Option.  Based on the traffic census conducted in SYCSS on 9 January 2009 (Friday) and the recorded peak pedestrian flow of SYCSS conducted on 10 March 2012, he worked out that the LOS of SYSCC at peak hour on Fridays would be at “B” level if it remained closed to vehicular traffic and would be at upper range of “E” level if it was open to vehicular traffic.  Mr Yeung therefore formed the view that it would be more desirable to close SYCSS to vehicular traffic on Fridays.

(3) Further, based on the loading and unloading activities within the MKPP, he also considered that the implementation hours of the Scheme should be from 4pm to 10pm instead of from noon to 10pm.

(4) He also looked at the traffic census conducted in SYCSS on a Saturday in January 2013, he observed that the pedestrian flow would drop materially after 9pm but the traffic characteristics would remain unchanged.  He worked out that the LOS of SYCSS on a weekend after 9pm would be at level “D” if the MKPP were open to vehicular traffic.  He therefore came to the view that advancing the closing hour of the Scheme in the MKPP on Sundays and General Holidays by one hour from 10pm to 9pm would be acceptable from the traffic and transport perspectives.

(5) Based on all the above assessments, instead of the Suggested Alternative Option, he suggested to Ms Lee that an alternative proposal to implement the Scheme in the MKPP on Fridays, Saturdays and Sundays and General Holidays be included in the questionnaire.  He also suggested that the then current implementation hours on Fridays and Saturdays be maintained, but the closing hours of the Scheme on Sundays and General Holidays could be advanced by one hour from 10pm to 9pm.

(6) However, Ms Lee informed him that implementing the Scheme also on Fridays would arouse “negative reaction” of the local residents.  Hence, considered from district administration point of view, it would be desirable to open the Streets to vehicular traffic on Fridays as well, provided that the TD was satisfied with such an arrangement from traffic and transport perspectives. Later, Ms Lee sent Mr Yeung a revised questionnaire for his further comment.  In this revised draft, the alternative option contained therein was revised to propose implementation of the Scheme only on Saturdays from 4pm to 10pm and Sundays and General Holidays from noon to 10pm (ie, Option 2).

(7) After further reviews, Mr Yeung considered that Option 2 was acceptable from traffic and transport perspectives, this is so as:

(a) The closing hours under Option 2 were the same as the then existing implementation hours of the Scheme.

(b) He considered, and his supervisors agreed, that the attractiveness of the MKPP might decrease if the implementation days would be reduced (ie, the Streets were to be opened to vehicular traffic from Mondays to Thursdays), and that on balance, the anticipated peak pedestrian flow in SYCSS on Fridays might be lower and similar to other weekdays.  This led to the anticipation that the level of LOS at SYCSS at peak hour on Fridays might be better than the upper range of “E” level (as he previously considered to be the case) and that there be a better pedestrian environment.  Thus, the pedestrian environment should be acceptable and road safety would not be compromised even if the MKPP at the Streets were to be open to vehicular traffic on all weekdays including Fridays.  The TD therefore considered that opening the Streets at the MKPP to vehicular traffic on Fridays would be acceptable from traffic and transport perspectives and did not insist on its earlier suggestion.

(8) He therefore informed Ms Lee on 28 August 2013 that the TD had no further comments on the proposals to be included in the questionnaire.

(9) Later, on 11 September 2013 (Wednesday), a more up-to-date traffic census on Nelson Street and Soy Street was conducted.  Based on this latest census, he worked out that the anticipated LOS of Nelson Street and Soy Street on weekdays at peak hour would be “D” level and “B” level respectively if they were open to vehicular traffic.  Mr Yeung regarded this as reaffirmation that the pedestrian environment at Nelson Street and Soy Street should be acceptable from traffic and transport perspectives and road safety would not be compromised if these streets were to be opened to vehicular traffic on weekdays.

(10) On 23 and 26 September 2013, Ms Lee sent Mr Yeung a revised draft questionnaire and finalized version respectively.  Option 2 was included as the alternative to Mr Chow’s Proposal in them.  The TD made no further comments.

(11) In late October 2013, the YTMDO forwarded the TD a summary of the figures and results of the Consultation.

(12) At the TD’s Review Meeting, the senior management of the TD discussed the matter.  This was attended by Mr Yeung’s senior, Mr Lee Wai Bun (“Mr Albert Lee”).  Mr Yeung’s traffic and pedestrian analyses and results were presented verbally at the meeting.  After discussion, the Commissioner directed that Option 2 should be implemented if the other concerned government departments and the T&TC also supported the same.[23]

(13) At a government inter-departmental meeting held on 14 November 2013, where Mr Yeung attended, the Administration reached a consensus to implement Option 2 on a trial basis if the T&TC also supported it.

(14) At the T&TC’s November Meeting (held on 21 November 2013), the T&TC passed a motion to urge the Government to reduce the implementation days of the Scheme as per Option 2.

27.Notwithstanding the above evidence, in support of this ground, Ms Wong (for the applicant) submits that the court should not accept those evidence, but should instead conclude that those assessments had not been carried out.  Thus, the Commissioner in making the Decision did not take these impact assessments into account.  Counsel advances a number of arguments to say why this evidence should not be accepted.

28.First, Ms Wong says according to Mr Yeung’s evidence, all the purported assessments were carried out by him through simple arithmetic calculations based on past traffic censuses, whether relating to pedestrian flow or vehicular traffic.  However, she says this evidence is a mere assertion and not corroborated by any objective evidence.  There are no written documents of any sort to show how these assessments or calculations were done.  This is, counsel submits, inherently improbable and not believable.  This is more so given that a decision to reduce the implementation days of the Scheme is an important one as it affects the serious issues of pedestrian and traffic safety.  It is therefore unlikely that there are no documents to record any of these assessments.

29.With respect, I am not convinced by this submission.

30.Mr Yeung has explained in his affidavit why these assessments could be carried out by simple arithmetic.  The explanations are at paragraphs 1, 2, 18:

“1. I have been a professional civil engineer and admitted as a Member of the Institute of Civil Engineers, UK, since 2006. Up to now, I have more than 8 years of post-qualification experience as a professional civil engineer. Before I was posted to TD in July 2011, I worked in the Highways Department (‘HyD’) from August 2006 to July 2011, responsible for the design of highway structures and maintenance of highway facilities. From 4 July 2011 to 13 April 2014, I was Engineer/Housing and Planning 3/Kowloon (E/HP3/K) of the Traffic Engineering (Kowloon) Division (‘TEK’) of TD. The TEK is responsible for the day-to-day traffic management of public roads in the Kowloon Region. As an Engineer of TEK, I was responsible for, among others, traffic administration and management works in Yaumatei area, Kowloon, provision of traffic engineering support, implementing and monitoring the pedestrian schemes in Kowloon including the Mong Kok Pedestrian Precinct, carrying out traffic assessments, and handling public complaints and enquiries in relation to the pedestrian schemes.

2. Since 14 April 2014, I have been Engineer/Energizing Kowloon East (EK/EKE) of TEK of TD, responsible for, among others, provision of traffic engineering support to Energizing Kowloon East Office in the planning and implementation of the traffic related items in Kowloon East Business Areas.

…

18. For a traffic and transport assessment, it is a practice that the assessment is based on, among others, site observation, recent traffic censuses available, the traffic aids drawings showing the road network details in the area and recent traffic accident records kept in the computer system, which are retrievable at any time. In addition, such assessment inevitably involves professional judgment made based on the knowledge and skills acquired from the professional background of the officers, professional and on-the-job training (including in-house seminars), internal manuals and guidance, previous work experience, and the knowledge about the area or district concerned in general acquired from daily work (which is MKPP and the Mong Kok area in this case). In TD's Regional Offices of which TEK is a part, officers, who are familiar with the local traffic condition through their day-to-day monitoring of the local road traffic as well as handling of the district traffic administration work, are frequently required to carry out simple traffic assessment with their traffic knowledge, site information and traffic data available in hand. Simple arithmetic calculations may need to be done from time to time using calculator and excel worksheet in computer, which can be reproduced easily at any time. Hence, given the large number of tasks to be handled daily, it is not a practice for the officers to make detailed documentation on every single simple calculation and assessment. Decisions would often be made after discussions, mostly verbal, with colleagues and supervisors. This is also the case with the assessment conducted in relation to the proposed reduction of the implementation days of the Scheme in MKPP at SYCSS, Nelson Street and Soy Street in which I was involved.” (emphasis added)

31.He has also explained how to calculate the LOS by reference to pedestrian flow rate at paragraphs 20.3 ‑ 20.3.6 as follows:

“20.3. Level of Service (‘LOS’):

20.3.1. LOS is a quality measurement of the operational conditions of a pedestrian traffic stream. It is a practice and a tool to assess and monitor the pedestrian environment, primarily based on the density of people in a given space. LOS has six levels, which are defined according to the flow rate as follows:-

LOS	Flow Rate[24]	Description
A	<=16	Pedestrians basically move in desired paths without altering their movements in response to other pedestrians. Walking speeds are freely selected, and conflicts between pedestrians are unlikely.
B	16-23	Sufficient space is provided for pedestrians to freely select their walking speeds, to bypass other pedestrians and to avoid crossing conflicts with others. At this level, pedestrians begin to be aware of other pedestrians and to respond to their presence in the selection of walking paths.
C	23-33	Sufficient space is available to select normal walking speeds and to bypass other pedestrians primarily in unidirectional stream. Where reverse direction or crossing movement exist, minor conflicts will occur, and speed and volume will be somewhat lower.
D	33-49	Freedom to select individual walking speeds and bypass other pedestrians is restricted. Where crossing or reverse-flow movements exist, the probability of conflicts is high and its avoidance requires changes of speeds and position. The LOS provides reasonable fluid flow; however considerable friction and interactions between pedestrians are likely to occur.
E	49-75	Virtually, all pedestrians would have their normal walking speeds restricted. At the lower range of this LOS, forward movement is possible only by shuffling. Space is insufficient to pass over slower pedestrians. Cross- and reverse-movement are possible only with extreme difficulties. Design volumes approach the limit of walking capacity with resulting stoppages and interruptions to flow.
F	>75	Walking speeds are severely restricted. Forward progress is made only by shuffling. There are frequent and unavoidable conflicts with other pedestrians. Cross- and reverse-movements are virtually impossible. Flow is sporadic and unstable. Space is more characteristics of queued pedestrians than of moving pedestrian streams.

20.3.2  According to the Transport Planning and Design Manual Vol. 6 Chapter 10 section 10.4.2 paragraph 10.4.2.3 (ix), in general, LOS ‘C’ is desirable for most design at streets with dominant ‘living’ pedestrian activities. This is considered to reach a desirable balance between land use and walking environment of pedestrians. A true copy of the relevant extracts of the Transport Planning and Design Manual Vol. 6 Chapter 10 section 10.4.2 concerning LOS is now produced and shown to me marked as Exhibit ‘YWK-8’.

20.3.3  The pedestrian flow on most of the streets varies at different hours of the day. Where the LOS of a footpath during the peak hour is lower than ‘C’, i.e. ‘D’, ‘E’ or ‘F’, it does not mean that the footpath concerned is unsafe and traffic improvement measures (such as widening footpath, diversion, etc) must be done in order to improve the LOS to ‘C’ or above. Factors including the characteristics of the streets concerned, the traffic situation, the existing traffic management measures and traffic facilities have to be taken into account.

20.3.4  In the context of MKPP, where the implementation days of the Scheme were proposed to be reduced, LOS was calculated to assess the anticipated pedestrian environments when all pedestrians were assumed to be walking only along the footpaths on both sides of the streets concerned.

20.3.5  The pedestrian flow rate was calculated by dividing the pedestrian flow per minute by the effective width of the footpath. The effective width of footpath was calculated by deducting the gross footpath width by the shy distances from obstruction on the walkway. Based on the calculated flow rate, the corresponding LOS could then be ascertained from the table above.

20.3.6  The calculation of LOS involves simple arithmetic and engineers in TEK including myself are familiar with the calculation. Such calculation based on traffic census can be easily reproduced at any time in future and therefore was not documented at the time of the calculation.

20.3.7  Based on the highest pedestrian flows as recorded in the traffic censuses conducted in SYCSS on 7 March 2012 (Wednesday) and 10 March 2012 (Saturday) respectively, if the MKPP at SYCSS were to be opened to vehicular traffic on Mondays to Thursdays, the anticipated LOS would be at ‘D’ level at the peak hour. If the MKPP were to be opened to vehicular traffic on Sundays and General Holidays, the anticipated LOS would be at the mid-range of ‘E’ level at the peak hour.”  (emphasis added)

32.Thus, it is Mr Yeung’s evidence that to carry out these assessments on LOS and the impact on pedestrian flow and traffic safety, they can be done easily through simple arithmetic based on relevant traffic censuses and data.  This is particularly so in the present circumstances given that he had been responsible for overlooking the traffic control and conditions of the Mong Kok area, the Scheme and the MKPP area for a number of years and was familiar with this area’s traffic conditions.  These calculations and assessments indeed have been carried out on a regular basis as a normal practice for civil engineers specializing in traffic control and engineering.  These calculations can be easily reproduced with the data (which has been recorded).  The conclusion as to whether the results of the relevant calculations supports an acceptable or desirable safety traffic level (vehicular and pedestrian) at the Streets is a matter of professional judgment for him to make as an engineer specialized and experienced in this area.  Further, he would discuss with and seek confirmation of his view with his seniors and supervisors, and discussions on these regular calculations and assessments with other colleagues of the TD are usually done verbally.

33.I cannot see how this part of Mr Yeung’s evidence and explanations based on professional and expert experience can be seriously challenged and doubted.  I do not find this to be objectively inherently implausible as suggested by Ms Wong.  There is in any event simply nothing before me as a matter of evidence to rebut or put doubts on Mr Yeung’s explanations as to why these assessments could be easily carried out by him without the need to resort to any written documentation.  In this respect, it must also be noted that there is no cross-examination of Mr Yeung.  It is trite that in judicial review, in the absence of cross-examination, even if there is a dispute of fact on evidence (and in the present case, there is not even evidence to dispute this fact), it should generally be resolved in favour of the respondent: Aguilar Elmedorial v Director of Immigration (unreported, HCAL 40/2011, 17 May 2012, Au J) at paragraph 43; Clive Lewis¸ Judicial Remedies in Public Law (5^th ed) at paragraphs 9-120 ‑ 121.

34.I therefore would not reject Mr Yeung’s evidence that he had carried out the assessments on the basis that there is no written or objective corroborative evidence to support it.

35.Second, Ms Wong says it is Mr Yeung’s evidence that he reported to the Commissioner (through Mr Albert Lee) at the TD’s Review Meeting the impact assessments he had carried out and the opinion that Option 2 could be adopted.  Ms Wong then submits that this is again incredible since there is no reference whatsoever about these assessments, and that they supported Option 2 in the TD’s Half Yearly Performance Review Report (“the Report”) relating to this meeting.

36.The Report is entitled “Traffic Engineering (Kowloon) Division Half-Yearly Performance Review Report [for the six months ending 30 September 2013]”, and its relevant extract is exhibited to Mr Albert Lee’s affirmation at paragraph 10.  The exhibited extract of the Report stated as follows:

“Mongo Kook Pedestrian Scheme

•   There have been complaints on the street management problems in the Mong Kok pedestrian scheme.  At the 18 July 2013 YTMDC T&TC, a DC member proposed to shorten the scheme from 7 days a week to Friday/Saturday only.  DO/YTM has recently completed a local consultation exercise as well as an on-street opinion survey.  The preliminary finding of the local consultation showed that 77.5% of the respondents agreed to the shortening proposal, and among them, 42.5% preferred Option 2 i.e. only on Saturday/Sunday, while 26.7% preferred Option 1 i.e. only on Friday/Saturday.  The preliminary finding of the on-street survey indicated quite differently that 53.8% of the respondents were satisfied with the current situation.  61.5% of the respondents preferred the current 7 days scheme, 22.7% preferred Saturday/Sunday option, while only 15.8% preferred Friday/Saturday option.  DO/YTM plans to present the findings at the coming T&TC meeting in November 2013.  TE/K will assist DO/YTM in looking for a compromised solution and work out necessary associated traffic management measures.”

37.In support of her contention, Ms Wong raises two principal submissions.  I will look at them in turn.

38.Ms Wong first submits that the Report is indeed a record of the TD’s Review Meeting. As such, given that the report does not make any references to these assessments and the discussion and decision on Option 2, it is objectively clear that there is none.  Mr Yeung’s evidence that he had carried out the assessments therefore cannot be true and correct.

39.Mr Ma for the Commissioner however submits that the Report is obviously prepared for the TD’s Review Meeting but not a minutes or record of the meeting.  It is therefore a report prepared in advance of the meeting.  Counsel says this is supported by Mr Albert Lee’s account of the meeting (and in exhibiting the extract of the Report) at paragraph 10 of his affirmation, which is as follows:

“10. On 5 November 2013, Chief Traffic Engineer/Kowloon of TEK (‘CTE/K’) and I reported the progress and updated situation of the proposed reduction of the implementation days of the Scheme in MKPP at SYCSS, Nelson Street and Soy Street to C for T and DC/PTS in the Half-yearly Performance Review Meeting (‘the Review Meeting’), which was a regular half-yearly meeting to report on the progress of the projects undertaken by the relevant division within TD. At the Review Meeting, CTE/K and I reported to C for T, among others, (1) on TEK’s assessments from traffic and transport perspectives of the proposed reduction of the implementation days of the Scheme in MKPP at SYCSS, Nelson Street and Soy Street, including that Option 2 as stated in the questionnaire (i.e. implementing the Scheme in MKPP at SYCSS, Nelson Street and Soy Street on Saturdays from 4 p.m. to 10 p.m. and on Sundays and General Holidays from 12 noon to 10 p.m., ‘Option 2’) would be acceptable from pedestrian environment, traffic, transport and safety perspectives and would be more desirable than Option 1 (i.e. Mr Chow’s proposal), and (2) on the figures and results of the mail survey and street survey. A true copy of the relevant extract of the TEK Half-Yearly Performance Review Report (with irrelevant parts being covered up) is now produced and shown to me marked as Exhibit‘LWB-3’.”

40.Ms Wong on the contrary says, on a proper reading of this part of the affirmation, it shows that the Report is a record of the meeting, given that this is introduced and exhibited by Mr Albert Lee only after he has set out what happened at the meeting.

41.In my view, the fact that this document is entitled a “Report” objectively clearly supports that it is prepared for reporting matters at the TD’s Review Meeting.  This therefore shows that it is a document prepared in advance of and for the purpose of the meeting.  The mere fact that this is referred to at the end of Mr Albert Lee’s account of what happened at the meeting is equivocal as to whether this was prepared before or after the meeting.  This is equally consistent with an intention of Mr Albert Lee to exhibit it to show that the TEK was to “report” the progress and updated situation of the proposed reduction of the implementation days of the Scheme to the Commissioner at the meeting.

42.I therefore do not accept Ms Wong’s submission that the Report is intended to be a record of the meeting.  It follows that I also reject counsel’s submission that Mr Yeung’s evidence of having carried out the assessments which was discussed at the meeting is incredible because these were not referred to in the Report.

43.Ms Wong then alternatively submits that, even if the Report is prepared for the meeting, it is equally incredible that it did not contain any references to the impact assessments if these had in fact been carried out by Mr Yeung.  The purpose of the TD’s Review Meeting was to discuss and decide on whether Mr Chow’s proposal (ie, Option 1) or Option 2 could be adopted for reducing the implementation days of the Scheme from traffic and transport perspectives.  As such, it is (says Ms Wong) absurd and hence incredible that the report did not contain the analysis and results of the traffic impact assessments (which must be of important relevance to the Commissioner’s consideration) but contained the comparatively less important and less relevant survey results (insofar as the Commissioner is concerned).

44.There is some force in Ms Wong’s above contentions.  However, on reflection, I am still not persuaded.

45.Ms Wong’s submissions, if correct, effectively amount to saying that (a) Mr Yeung has made up the story under oath that he had carried out the assessments as set out in details in his affidavit; and (b) Mr Albert Lee has similarly made up the story to say he had conveyed the results of Mr Yeung’s analysis and assessments to the Commissioner at the TD’s Review Meeting.  These are very serious allegations made against two professionals and civil servants.  It requires a very compelling and clear case and evidence to support such serious allegations.

46.In this respect, it must be noted that, as I have summarized above in the background, at the July Meeting, Mr Yeung was recorded in the minutes of the meeting of saying to the district council members of the T&TC that he would carry out the relevant study from traffic and transport perspectives regarding the proposal to reduce the Scheme’s implementation days.  This relevant part of the minutes (paragraph 157(v)) reads as follows:

“157. 楊永健先生回應如下：

…

(v) 運輸署將繼續配合各執法部門的工作，並會在聆聽油尖旺區議會對量角行人專區開放時間的意見後，從交通和運輸的角度對有關建議進行研究。” (emphasis added)

47.Given this reply and statement, it is objectively unlikely that Mr Yeung somehow did not proceed to carry out the study and assessments as he had promised to do.  It is even more unlikely that, worse still, he then decided to make false statements under oath to explain in affidavit how he had carried out those assessments and studies when he in fact had not done them.

48.Moreover, as rightly submitted by Mr Ma, it is not objectively beyond common sense that the assessment analysis and calculations were not contained in the Report when considered in the following context:

(1) There is no dispute that the Commissioner is, by design of the grading of the post, not an engineer by profession.  Hence, where professional assessments had to be taken into account in the Commissioner’s decision-making, it would not be objectively so unusual that only the outcome of those professional assessments would be presented to the Commissioner without the technical and calculation details.  In any event, in view of the Commissioner’s very senior position and high-level manifold responsibilities, he cannot be expected to spare time to be informed of or examine every minute detail of the TD’s officers’ professional work (such as the details of the traffic assessments) and would have to rely on the officers to have their assessments properly done under the supervision of more senior professional officers.

(2) As such, there is nothing unusual that the details of the traffic assessments were not recorded in the Report, and that the officers who attended such regular meeting (eg, Mr Albert Lee, then Assistant Commissioner for Transport/Urban) conveyed the gist of those assessments to the Commissioner verbally in the course of the meeting for discussion and consideration.  See Mr Albert Lee’s affirmation, paragraph 10.

(3) Hence, the mere fact that the traffic assessments were not mentioned in the Report is not a strong enough basis to doubt the credibility of Mr Yeung’s and Mr Lee’s evidence on oath.

49.In my view, when all the above are considered as a whole in proper context, the mere fact that the Report does not contain a reference to the assessments and analysis does not even come close to support the serious allegations that Mr Yeung and Mr Albert Lee have effectively made up the stories under oath.  I am therefore far from satisfied that the absence of any reference in the Report to the assessments and studies shows that Mr Yeung did not in fact carry out those assessments as he had deposed to in his affidavit.

50.Third, Ms Wong further submits that even if the assessments were indeed carried out by Mr Yeung, they were done improperly and in any event not reliable.  The assessment results are thus irrational.  Hence, the Decision is similarly tainted with the defects when the Commissioner took them into account.

51.Ms Wong says the assessments are improper and wrong because (a) they are simply based on past traffic censuses, which may well be outdated, and (b) Mr Yeung has not explained on what basis he could make the “anticipation” as he has deposed to in paragraphs 20.2.6 and 20.4.3 of his affidavit.  These paragraphs say as follow:

“20.2.6. Having considered the matters stated in paragraphs 20.2.2 to 20.2.5, and that the pedestrian flows on General Holidays would be similar to that on Saturdays and Sundays, and having anticipated that there would be no significant change of pedestrian flow in MKPP at SYCSS, I came to the view that if the MKPP was to be opened to vehicular traffic, the peak pedestrian flow in SYCSS would be around 12,000 to 13,500 pedestrians per hour on Mondays to Thursdays, and around 19,000 to 20,000 pedestrians per hour on Sundays and General Holidays.

…

20.4.3. I anticipated that if the implementation days of the Scheme in MKPP at SYCSS, Nelson Street and Soy Street were to be reduced, the traffic characteristics of these streets would remain unchanged, and the road configuration in and around MKPP would not lead to significant diversion of traffic from other local roads like Sai Yee Street or Fa Yuen Street to SYCSS, Nelson Street or Soy Street. I therefore considered that such traffic diversion (if any) due to opening of SYCSS, Nelson Street and Soy Street in MKPP to vehicular traffic would be insignificant and unlikely to have significant impact on local traffic. I anticipated that the vehicular traffic at SYCSS, Nelson Street and Soy Street would remain low if the implementation days of the Scheme in MKPP at SYCSS, Nelson Street and Soy Street were to be reduced.” (emphasis added)

52.Ms Wong says those “anticipations” constituted important foundations to Mr Yeung’s assessments.  In the premises, in failing to explain the basis of making these “anticipations”, the conclusion of Mr Yeung’s assessments must be regarded as irrational in public law sense as there is no foundation to it.

53.I am unable to agree with Ms Wong.

54.Objectively reading the affidavit in proper context and as a whole, what Mr Yeung is saying is that he formed those “anticipations” as a matter of professional judgment, which is made based on (a) his professional experience in traffic engineering; (b) his professional experiences obtained in monitoring the Scheme and the MKPP over the years in the area; and (c) having looked at and reviewed the relevant data and traffic censuses.

55.In the absence of any evidence pointing to the contrary (and also in the absence of any cross-examination of Mr Yeung on this), with respect, Ms Wong has simply no proper basis to even start to say that these “anticipations” are without any foundation.  It is a fortiori that they cannot be said to be irrational.

56.Insofar as the use of past censuses is concerned, again without any evidence to the contrary and any cross-examination, I cannot see how the court can say the reliance of this data by a professional to carry out the assessments is unsound or without basis.  Quite to the contrary, as a matter of common sense, when one is to carry out an assessment to predict something in the future in a hypothetical situation, by definition, it must be reasonably open to that person to use available relevant past data to do so.

57.For all these reasons, I reject Ms Wong’s contentions that the court should not accept Mr Yeung’s and Mr Albert Lee’s evidence that Mr Yeung had carried out those impact assessments and analyses, and that these assessments results had been reported the Commissioner.

58.Once the court accepts this evidence, it is obvious that the Commissioner did take into account the impact assessments in making the Decision.

59.In the premises, the Relevant Consideration Ground must fail.

C2.   The Abdication of Duty Ground

60.It is convenient to deal with this ground now.

61.The Decision was made by the Commissioner pursuant to the power provided under section 14(1)(a) and (2) of the Road Traffic (Traffic Control) Regulations (Cap 374G).  Under these provisions, the Commissioner may, by notice in the Gazette, designate any area as a “prohibited zone”, to prohibit the driving of any motor vehicle on any road within the prohibited zone on specified days, during specified hours in any day, or during specified hours in any specified days.

62.In support of this ground, Ms Wong’s principal submissions are that the Commissioner simply rubber-stamped the T&TC’s recommendation to implement Option 2.  This is so since, in making the Decision, the Commissioner had not carried out any independent assessment, analysis or evaluation to see how the significant reduction in the Scheme’s implementation days and the opening up to vehicular traffic would potentially change the flow of pedestrian and vehicular traffic, and how their safety would be endangered or impacted.  The Commissioner therefore abdicated his decision-making power to the T&TC of the YTMDC.

63.Ms Wong further submits that the following evidence shows that the Commissioner simply rubber-stamped the YTMDC’s motion:

(1) First, Ms Wong says after the motion to reduce the implementation days was passed at the T&TC’s November Meeting, Mr Chow raised the query on when the motion passed would be implemented. Mr Yeung indicated that the TD would work with other departments on implementing the motion to reduce the implementation days in respect to the MKPP.  This is reflected at the minutes of the meeting:

“41. 葉傲冬主席宣布，在0票贊成方案一、24票贊成方案二和一票棄權下，交運會通過採納方案二的安排。

……

43. 仇振輝議員問運輸署何時可落實方案二的安排，並了解當中渉及的程序。

44. 楊永健先生回應說，運輸署將與民政處、警方和其他部門配合及共同商議落實細節及相關的準備工作，包括安排更改交通標誌、刊憲、向行人專區附近的商戶和居民派發通知告示，以及豎立臨時告示牌，提醒途人踢駕駛者注意行人專區新的實施時段安排等，全部工序預計需時三至四個月完成。” (emphasis added)

(2) Significantly (Ms Wong emphasizes), there was no mention, analysis or evaluation of provided at the meeting on how the significant reduction in the implementation days or the opening up to vehicular traffic would potentially change the flow of pedestrian and vehicular traffic and how their safety would be endangered or impacted.

(3) Second, the abdication of power by the Commissioner to the YTMDC was further evidenced by the reply letter from the Commissioner to the YTMDC dated 6 January 2014 (“the Commissioner’s Reply Letter”):

(a) On 5 December 2013, the YTMDC wrote a letter to the Commissioner urging him to promptly implement their motion to reduce the implementation days; and

(b) In the Commissioner’s Reply Letter, the Commissioner made it clear that the TD would promptly implement the motion passed by the YTMDC on 21 November 2013 and was indeed working with other departments on the implementation details.

(4) Ms Wong again emphasizes that, in the Commissioner’s Reply Letter:

(a) There was no indication whatsoever that the Commissioner was undertaking a separation or independent consideration of the issue. In contrast, the letter made it clear that it was following and implementing the motion passed by the YTMDC; and

(b) There was also no mention, analysis or evaluation of how the significant change in the implementation days would change the flow of pedestrian and vehicular traffic and how their safety would be endangered or impacted.

64.There is nothing in this ground.

65.As mentioned above, the Commissioner has filed evidence in this application to show that before making the Decision: (a) the TD (through Mr Yeung) had carried out independent relevant traffic and pedestrian impact assessments; (b) how Option 2 was evolved from the initial proposal coming from Mr Yeung; (c) Mr Yeung had specifically studied whether Option 2 was acceptable from traffic and transport perspectives; and (d) all these were reported to the Commissioner in the TD’s Review Meeting before he decided to endorse Option 2 provided all other government departments and the T&TC supported it.

66.Ms Wong has submitted (for the same reasons she has advanced under the Relevant Consideration Ground) that the court should not accept this evidence.

67.It can immediately be seen that this ground is in substance premised on the applicant’s same complaint under the Relevant Consideration Ground: that the Commissioner failed to carry out the relevant impact assessments and that the court should not accept the Commissioner’s evidence showing that those assessments had in fact been carried out.

68.I have for the reasons explained above accepted the Commissioner’s evidence in this respect.  There is therefore also no substance in the complaint that the Commissioner abdicated his decision-making power to the YTMDC.  The further evidence relied on by Ms Wong (as set out in paragraph 63 above) does not assist her.  It is taken out of context and entirely ignores what the TD and the Commissioner had done before the T&TC’s November Meeting as now set out by the Commissioner in evidence.

69.I therefore also dismiss this ground.

C3.   The Unfair Consultation Ground

70.Under this ground, the applicant complains that the Consultation was not conducted fairly.

71.The Consultation was conducted in the following ways:

(1) First, the YTMDO conducted a two-week local consultation exercise from 27 September 2013 to 10 October 2013 during which time it consulted residents and shops of nearby buildings on the relevant proposal by letters.

(2) Second, the YTMDO commissioned Shue Yan to conduct an on-the-street survey to gather the views of pedestrian on the proposed reduction.

72.In both surveys, a similar questionnaire was used which contained five questions for the consultees to answer.  Although slightly differently worded, these questions are in substance the same.  For the present purpose, I will quote the questions set out in the mail survey questionnaire as follows:

“建議縮減旺角西洋菜南街一帶行人專用區的實施日數

1.   本人   滿意 /   不滿意 旺角西洋菜南街一帶行人專用區現時的整體情況

2.   有關西洋菜南街實施行人專用區的安排，本人：

□   同意縮減行人專用區的實施日數 (請選擇方案一或方案二) (實施範圍見附圖)

□ 方案一：  建議星期日至星期四全日不設行人專用區，恢復通車；並只於星期五及星期六下午4時至晚上10時正實施行人專用區

□ 方案二：  建議星期一至星期五全日不設行人專用區，恢復通車；並只於星期六下午4時至晚上10時正、星期日及公眾假期正午12時至晚上10時正實施行人專用區

□ 要求維持現時行人專用區的實施時間，即由星期一至星期六，下午4時至晚上10時正，及於星期日及公眾假期正午12時至晚上10時正實施行人專用區

3.   我認為政府 □ 應該 / □ 不應該 就街頭表演活動作出監管。

4.   我認為 □ 應該 / □ 不應該 在社區上劃出地方作街頭表演場地。

5.   其他意見：___________________________________

*請在合適的 內填上『✓』號

…”

73.It is common ground between the parties that, although there is usually no duty in law for the authority to conduct a public consultation, once it has decided to do so, it should be carried out properly and fairly.

74.In this respect, Ms Wong relies on R v Brent LBC, ex p Gunning (1985) 84 LGR 168 at 189 to say that a fair consultation in law should satisfy what counsel describes as the Gunning requirements.  They are as summarized by Chu J (as her Ladyship then was) in Lam Yuet Mei v Permanent Secretary for Education and Manpower [2004] 3 HKLRD 524 at paragraph 50:

(1) Consultation must be undertaken at a time when the relevant proposal is still at formative stage.

(2) Sufficient reasons for the proposal must be provided to consultees to enable them to give intelligent consideration and response.

(3) Consultees must be afforded adequate time in which to consider and respond.

(4) The result of consultation must be conscientiously taken into account when the ultimate decision is taken.

75.In the present challenge, Ms Wong submits the design of the five questions in the questionnaire did not satisfy the second requirement, as a result of which the Consultation was conducted in a biased and unfair way.  When asked by the court at the hearing, Ms Wong emphasizes that to satisfy the requirement, the questionnaire should, but failed to:

(1) provide the consultees with sufficient background and contextual information leading to the purpose of the Consultation. Counsel submits that the questionnaire should but failed to identify to the consultees all the problems that were seen to be encountered at the MKPP that had led to the various complaints received.  These problems included (other than street performers) illegal hawking and other commercial activities (eg, promotion booths, photo-taking, easy-mount frames).

(2) provide the consultees with different potential alternative means, in addition to reducing the implementation days of the Scheme, to address these problems encountered at the MKPP.

76.Ms Wong then submits that the failure to provide the above, coupled with the inclusion in the questionnaire questions 2, 3 and 4, resulted in misleading the consultees to have the impression or perception that (a) street performers were the only or principal cause of the problems and complaints at the MKPP, and (b) reduction of the Scheme’s implementation days (in the way of either Option 1 or Option 2) was the only effective means to address the problems and complaints.  These are however incorrect.  The Consultation is thus unfair, biased and improperly carried out.

77.I do not agree.

78.Whether the Gunning requirements are satisfied must be examined in proper context and the specific circumstances and purpose of the subject consultation exercise.

79.For the present purposes, one must therefore read the questionnaire as a whole and against the primary purpose of the Consultation as requested by the T&TC to be carried out.  It was not to conduct a general survey to identify what were the general problems at the MKPP and what were the means to address those problems.  It was to collect views on the proposal to reduce the implementation time of the Scheme at the MKPP.[25]

80.Against this purpose and context of the Consultation, when the questions are objectively read and as a whole, I do not think they are misleading or biased in the way as Ms Wong has submitted.  I will explain why.

81.First, under question 1, the consultees were asked whether they were satisfied or not with the “general and overall conditions” (“整體情況”) of the MKPP.  It did not ask the consultees to relate their satisfaction or dissatisfaction to any specific problems, but only asked them to have regard to what they found as the general conditions of the MKPP.

82.Second, question 5 again provided an open question for the consultees to identify whatever views they might have relating to the MKPP.  In other words, the consultees were free to set out under this question whatever other means they believed to be effective in addressing any of the problems they believed were present at the MKPP.

83.Further, not only that the consultees could say in question 5 that it was not necessary to reduce the implementation days of the Scheme, they could also indicate under question 2 that they did not regard it as necessary to reduce the implementation days of the Scheme.

84.In the premises, notwithstanding questions 2 to 4,[26] the questions in the questionnaire read as a whole objectively would not have led the consultees to only finding that street performers were the only or principal cause of the problems and complaints at the MKPP, and reduction of the implementation days of the Scheme was the only means to address the problems and complaints as submitted by Ms Wong.

85.As a matter of fact, a brief review of the summarized responses of the surveys shows clearly that the consultees were not and could not be under the misled perceptions as now alleged by the applicant.  This is so as quite a number of these responses are to the effect that there should be longer implementation time of the Scheme, there should be more street performers, and that the Administration should not restrict street performers but instead should restrict or ban commercial and hawking activities in the MKPP.[27]

86.I am therefore not convinced that the Consultation was biased and conducted unfairly as a matter of law.  This ground must also fail.[28]

D.   CONCLUSION

87.For the above reasons, all of the applicant’s grounds of judicial review fail.  I would dismiss this application.

88.There are no reasons why costs should not follow the event.  I will make an order nisi that costs of this application be to the Commissioner, to be taxed if not agreed.  However, such costs should not include the costs of the leave application hearing on 20 April 2015.  The Commissioner by that time had not filed any evidence to show (as the court has now accepted in this judgment) that the relevant impact assessments had indeed been carried out.  It was therefore not unreasonable for the applicant to pursue the leave application based on the available evidence at that time.  Insofar as the leave application is concerned (including the hearing on 20 April 2015), I think it is only just and fair to make no order as to costs.

89.I thank counsel for their assistance in this matter.

Ms Athena Wong, instructed by Payne Clermont, for the applicant

Mr Johnny Ma, instructed by Department of Justice, for the respondent