Attorney General v. Wong Kwong-shing t/a Ka Wah Notors Co
Read the full judgment text of CACV 58/1975 on BabelCite. This Court of Appeal judgment was delivered on 7 April 1976.
1. The plaintiff ( respondent) submitted his application for registration of 50 public light buses on the 20th of February 1975. On the following any, the 21st, the Commissioner of Transport publisned in the Gazette a notice pursuant to his powers under Regulation 18B of the Road Traffic (Registration and Licensing of Vehicles) Regulations limiting the number of such vehicles which might be registered or liconsed to a maximum of 4,331. Subseouently, on the 12th of March 1975 the plaintiff was in
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CACV000058/1975
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----------------- Coram: Briggs, C.J., Pickering, J.A. & McMullin, J. Date of Judgment: 7 April 1976 ----------------- JUDGMENT ----------------- 1. The plaintiff ( respondent) submitted his application for registration of 50 public light buses on the 20th of February 1975. On the following any, the 21st, the Commissioner of Transport publisned in the Gazette a notice pursuant to his powers under Regulation 18B of the Road Traffic (Registration and Licensing of Vehicles) Regulations limiting the number of such vehicles which might be registered or liconsed to a maximum of 4,331. Subseouently, on the 12th of March 1975 the plaintiff was informed that all 50 applications had been refused by the Commissioner in the exercise of his powers under Regulation 18B and 17(2) and/or alternatively Regulation 17A(1) of those Regulations. The plaintiff sought a declaration that Regulation 17A and Regulation 18B were ultra vires the Ordinance; a declaration that he was entitled to have his 50 vehicles registered and a declaration that the Commissioner had no authority to refuse to register his vehicles as public light buses. 2. The learned trial judge found that Regulation 17A was ultra vires as not being within the ambit of the rule making power conferred upon the Governor by s.4 of the Ordinance, The learned judge ruled that the relevant parts of Regulation 18B were not ultra vires and lthough he was critical of the validity of paragraph 2 of that rule he found that it was in any event severable from the rest and that it could not ther fore invalidate that part of the rule which he was considering. 3. Information was placed before the court of trial by counsel for the Attorney General which was received by agreement as evidence and which was to the effect that on the date the Gazette notice (21st of February 1975) there were 4,289 vehicles registerd as public light buses and that there were 8 further applications which were regarded as "committed registrations" and that the total result, in effect, was that on that date there were still "vacancies" to be filled before the maximum figure announced by the Gazette notice would be attained. Accordingly the learned trial judge gave the plaintiff a declaration that he was entitled to have 34 of his 50 public light buses registered by the Commissioner. 4. Before this court Mr. Johnson for the Crown sought to introduce additional evidence to show that the actual "vacancies" on the 1st of February were 15 only and not 34. That application was refused. The Attorney General now appeals upon the ground that since there was before the lower court undisputed affidavit evidence that upon the date of the swearing of that affidavit (13th September 1975) there were only 15 public light bus licences available and 15 places available for registration of vehicles as public light buses the learned trial judge ought to have found that the Commissioner having, for good reason and within his lawful powers under Regulation 18B, published a notice fixing an upper-limit to the numbers of such vehicles which might be registered was obliged by virtue of the provisions of Regulation 17(2) to limit the declaration which he gave to the plaintiff to 15 and not 34 vehicles. Secondly, he points to the provisions of paragraph 3 of Regulation 18B, which he says were overlooked by the learned judge, here it is provided that when the Commissioner has specified the maxim number of motor vehicles which may be registered and has received valid applications which, but for that limitation, would have resulted in registration, he may cause such applications to be dealt with by lot. To take the second point first, the argument is that the judge was not entitled to assume that upon the 21st of February the plaintiff was the only applicant in the field. If there were other a pliconts then the plaintiff's right, vis-a-vis those others, was to have his 50 applications put into the hat together with those of all other applicants so that the 34 available places could be chosen from ameng all such applications under the auspices of chance. The answer to that contention is that the question of how many applicants were in the field upon that date was one peculiarly within the knowlodge of the Commissioner and in the absence of evidence that there were such other applicants the learned trial judge was ontitled to ssume that the plaintiff's 50 applications were the only applications with which he need be concerned. 5. The other contention, the applicant's principal contention, amounts to this that even if the Commissioner was under an obligation to register the 34 vehicles, because the applications for registration were properly lodged before the coming into force of the limit tion and were found to be in order, nevertheless once they were not registered upon the 20th of February then, upon the coming into force of the limit tion notice on the following day, the Commissioner had no option but to bey the law and to refuse to register more than 15, i.e. the number of vehicles which would bring the total number up to the newly established legal limit. Although this argument has an air of contrivance about it it would be superficial to dismiss it solely for that reason. Although no doubt the Commissioner himself is the author of the limitation he is not the author of the law which enables him to impose the limitation. It would be undair and improper to assume that in choosing the maximum figure he was acting with anything other than due deliberation or that he had inadequately addressed himself to the needs of the situation. For the purposes of the argument it must be assumed that that figure represented the best approximation to the traffic ...(illegible) at the time of publication, arrived at by use of the special knowledge and expertise within the Commissioner's possession. The Commissioner, Mr. Johnson says, finds him if in a quandary. he can only register these vehicles in breach of these Regulations; he can only refuse to register them at risk of finding himself held in contempt of the court's order. One answer which readily suggests itself for the resolution of that predicament is that, finding himself 19 vacancies short of the number required to obey the court's order, he could obey that order and still remain within the law by extending the uoper limit of rogistrable vehicles by whatever number remained in fact above the existing legal limit on the date of the court's order. It is evident that the Commissioner's task is not a easy one in this regard. If he decides to give advance warning to the public, as was suggested in the course of the argument put forward on behalf of the plaintiff, the very same problem which we are now confronted with may nevertheless still rise. For assuming that the Commissioner has fixed upon a legitimate maximum figure then advance notification of the ceiling to be imposed (and whether an actual date be specified in the advance warning or not) may bring on a flood of applications which may force the Commissioner either to publish his notice earlier than he had intended or alse to raise the ceiling further. But whether he gives advance warning or not he may still find himself, as he did in this case, on the eve of the official limitation with a surplus of "valid" applications on his hands ever and above the figure he has settled upon as the reasonable limit. His duty to safeguard the interests of the public will thus be found opposed by the vested rights (as it is alleged of certain individuals). 6. The strength of the plaintiff's case reaides in the fact, which is conceded, that there is a right to registration under Regulation 6 provided the application is found to be in order. It is argued that that is a right which becomes vested upon the date on which the application has been made, even although there is no obligation upon the Commissioner or his agents to process the application straight away, just so long as the application is found ultimately to have been in order from the outset. This was the basis of the plaintiff's case both at the trial and at the hearing of the appeal. The learned trial judge was laialy aware of the strength of the Commissioner's powers and of the oifficulty faced by the plaintiff in seeking to circumvent them but on this point, albeit with evident reluctance, he held in favour of the Commissioner. Having referred to the dangers inherent in delegated powers he said:
Mr. Zimmern upon the cross-appeal says that although Regulation 17(2) obliges the Commissioner to refuse to register if the total number of motor vehicles registered within the given class is equal to or exceeds the total number of vehicles that may be registered within that class nevertheless that obligation only arises after the Commissioner has imposed a maximum limit. On the 20th of February he had not yet done so and, counsel says, the plaintiff ought not to be penalised for any delay in the administrative machinery which may have occasioned the holding over for processing of applications, admittedly valid, until after the new ceiling had been introduced. For my part I would think that that argument would be unanswerable in any case in which the delay in processing the application had not only, as in the present case, resulted in the limit coming into force before the application was dealt with but in which additionally the delay could in itself be said to be unreasonable. If, for example, in the present case, the notice had not been published in the Gazette until the very day upon which the Commissioner notified the applicant of the failure of his application (the 12th of March) then I would think that the applicant could have approached the court invoking nothing more specific than principles of natural justice and be assured that an unexplained tardiness of that order on the part of the officials concerned would not be held in derogation of the right he possessed to registration upon the day of submitting the application. What cannot be maintained, I think, is that a vested right to registration arises instanter upon the presentation of a "clean" application, I adopt what was said by the learned trial judge in this regard:
To that, however, I would add a further consideration, and it may be the answer, if I am right, to the difficulty concerning publication and advance warning to which I have referred above. It is this : in addition to the matters which the Commissioner may justly consider before the inchoate right to be registered becomes a vested right - those matters to which the trial judge refers in the passage quoted - there is also the wide general power given to the Commissioner by Regulation 17(1) to refuse to register in the interests of (a) the safety of the public; and (b) the regulation of vehicular traffic. The Commissioner in refusing these applications did not purport to rely on that regulation, but he did expressly rely on the limitation which he had introduced under Regulation 18B. A notice under 18B might be regarded as one practical expression of the exercise of his powers under Regul tion 17. To my mind Regul tion 17(1) affores him full cover for refusing in his disoration to register, on either of the stated grounds, when applications, other wise in order, reach him between the time when he has made his decision to limit the numbers and the date upon which he publishes the limit. But in such a case the court would no doubt require good evidence that the delay in dealing with the application was not unreasonable. Unless an untoward delay was reasonably explained it might be difficult for the court to avoid the conclusion that the process of decision was itself the cause of the delay. I do not think that the Commissioner could legitimately postpone registration, on the sole ground that he had not yet made up his mind about the limit. 7. In the present case these applications were received, we are told, late in the afternoon of the 20th and it would be unre sonable to suggest that they must at once be processed and cleared. It is clear that not only had the Commissioner's decision already been made but that the notice itself must have been with the Government Printer and perhaps already in print. Admittedly the line may be hard to draw between applications which are to be considered timeous and those which are not but I think the line must be drown somewhere and clearly, to my mind, it must lie well to the hither side of the last minute of the eleventh hour. In other words, the power given to the Commissioner to limit the numbers ought to be construed as including a discretion - no doubt to beers senably exercesed - to refuse to accept or to hold in abeyance applications, evertopping the limit, which have ...(illegible) him after his decision has been made but before it has been published. That defence may have to be very narrowly serutinised in the given case, and the length of the delay will be a vital consider tion. But it must be held to have been reasonably exercised where, as in the prosent case, the applications have re chaed him at a point in time when it can be said that, virtually, the limit is in force all but for the turning of the printer's wheels. On that ground I would held that the cross-appeal must fail and that the plaintiff is not ntitled to the registration of all 50 vehicles. On the evidence which was before the learned judge however I think he was justified in making the order that 34 of those vehicles should be registered. Accordingly I would dismiss both the appeal and the cross-appeal. Representation:
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----------------- Coram: Briggs, C.J., Pickering, J.A. & McMullin, J. Date of Judgment: 7th April, 1976. ----------------- JUDGMENT ----------------- Pickering, J.A.: I have had the advantage of studying the judgment prepared by my brother McMullin in this case and I agree that the answer to the appellant's argument that any vacancies which existed as at 21st February 1975 should have been subject to a ballot, is that the number of applicants in the field upon that date was one particularly within the knowledge of the Commissioner and, since the Commissioner produced no evidence that applications other than those of the respondent existed at that date, the learned trial judge was entitled to assume that the respondent's fifty applications were the only ones with which he was concerned. 2. I have hesitated long however over the question whether, when the respondent lodged his fifty applications, he had an accrued right to have the registrations effected provided only that the applications, and the vehicles to which they related; were in order. If that be the case, he had an equity which it was not open to the Commissioner to destroy by the introduction of a basic new ground rule - that is, the subsequent introduction of a "ceiling" upon the number of public light buses which could be registered or licensed. 3. It is true, as counsel for the Crown argued, that it would be unrealistic for any applicant presenting fifty applications at 3:15 in the afternoon, to expect that those applications would be processed before the Commissioner's office closed on that same day. Thus if the claim to registration had constituted a vested right, the Commissioner's obligation, would have been not to process the applications on the 20th February so that the registrations were brought into being before the ceiling was imposed on the 21st, but to treat the applications on the basis that they had been received at a time when, provided that they and the vehicles were in order, there was no other impediment to the registration of the vehicles. Thus had the Commissioner decided that he wished to inspect the vehicles and had that inspection taken place over the ensuing week, there would have been no obligation to register any vehicles which did not comply, for example, with the Construction and Use Regulations but there would have been an obligation to register those which did comply with all relevant regulations. 4. All this on the assumption that the claim to registration did indeed constitute a vested right subject to the applications and the vehicles being in order. Upon consideration, however, I have come to the conclusion that there was no vested right. It is unfortunate that in giving his reas ne for refusing the applications, the Commissioner referred to the exercise of his "powers and duties under Regulations 18B, 17(2) and/or alternatively Regulation 17A(1) of the Road Traffic (Registration and Licensing of Vehicles) Regulations, Cap. 220" without making any reference to Regulation 17(1). In parenthesis I would mention that the learned judge held Regulation 17A, ultra vires. Regulation 17(1) reads:-
5. I am confident that had the Commissioner sought to rely upon this sub-regulation there would have been no Respondent's Notice. I have asked myself whether the Commissioner's failure to specify this sub-regulation estops him and this Court from reliance upon it - but I do not think that the failure does so operate. 6. The power contained in Regulation 18B(1) to limit, by notice in the Gazette, the number of public light buses which may be registered or licensed is not a power to be exercised arbitrarily. It is closely allied to, and indeed may he said to have its reets in the Commissioner's power, contained in Regulation 17(1), to refuse to register any motor vehicle in the interests of the regulation of vehicular traffic in the Colony. So close is the link between the two regulations that in invoking the later, the Commissioner may fairly be said to be also invoking the earlier. There must necessarily be an interval of time between the mental decision to impose a "ceiling" and the publication of that decision in the Gazette. And this is an area where the bona fides of the Commissioner may be called into question. But there can be no possibility of that in the present case for the gazetting of the "ceiling" was effected upon the very day after the applications were lodged and the mochanies of the procedure of obtaining an insertion in the Gazette must be such that the Commissioner's decision had been taken before 3.15 p.m. on the day before the Gazette notice. In other words the refusals were made in pursuance of a decision to refuse already taken under Regulation 17(1) in regard to "the regualation of vehicular traffic in the Colony". 7. I too would dismiss both the appeal and the cross-appeal. Representation: Johnson, C.C., for appellant A. Zimmern, Q.C. & Mills-Owens (Deacons) for respondent.
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----------------- Coram: Briggs, C.J., Pickering, J.A., McMullin, J. Date of Judgment: 7th April, 1976. ----------------- JUDGMENT ----------------- 1. I have had the advantage of reading the judgments of the other two members of the court. The facts of this case have thus been set out admirably and it is unnecessary for me to deal with them. 2. Regulation 6(1) of the Road Traffic (Registration and Licensing of Vehicles) Regulations reads (in part) as follows:-
In my view this means that before the Commissioner can register a motor vehicle he must pay regard to the provisions of regulation 17. Sub-regulation (2) of that regulation reads as follows:-
3. This must mean that if a limit upon legislation has been imposed by the Commissioner under regulation 18B that limit must be adhered to. The Commissioner has no power to register vehicles in excess of the limit imposed. 4. I agree that regulation 6 states that the Commissioner "shall" register a vehicle. But I do not think that that means that an application has a right to register the moment his application is received by the Commissioner. Such an application has to be processed. Before he can register the Commissioner must be satisfied that the provisions of regulation 17 and consequently regulation 18B are satisfied. There must be a reasonable time for the Commissioner to do this. 5. In the present case the application was made a day before a limit to the number of vehicles was announced. I do not think that the Commissioner can be blamed for not registering the 50 vehicles by the time such announcement was made. How long a time will depend on the facts of each case. But I would point out that as both "public safety" and "the regulation of traffic in the Colony" are mentioned in regulation 17 there may be occasions of considerable delay. 6. This case was fought on the ground that there were 34 unallotted registrations at the appropriate time. Mr. Zimmern's cross appeal is for 50 registrations. For the reasons adduced by my brother Mr. Justice McMullin I do not think that the cross appeal can succeed. 7. It follows that I would dismiss both the appeal and the cross appeal. 8. In the court below the trial judge granted a declaration to the effect that Regulation 17A was ultra views the rule-making powers given in the Ordinance. No appeal has been lodged as to this which I, for one, regret.
Representation: R.J. Johnson for appellant. Zimmern, Q.C. & Mills-Owens (Deacons) for respondent. |