Ng Kee v. Attorney General
Read the full judgment text of CACV 8/1977 on BabelCite. This Court of Appeal judgment.
1. Before the creation of the office of Commissioner for Transport the functions now exercised by that Commissioner were the responsibility of the Commissioner of Police. On the 31st March 1962 the Commissioner of Police addressed a letter to the appellant, the first two paragraphs of which ran:
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CACV000008/1977
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----------------- Coram: Briggs, C.J., Pickering, J.A. & Leonard, J. Date of Judgment: 21st November, 1977. ----------------- JUDGMENT ----------------- Pickering, J.A.: 1. Before the creation of the office of Commissioner for Transport the functions now exercised by that Commissioner were the responsibility of the Commissioner of Police. On the 31st March 1962 the Commissioner of Police addressed a letter to the appellant, the first two paragraphs of which ran:
2. Accordingly the appellant registered and licensed six vehicles, the four-seater vehicle being allotted the registration No. AB 4936. Thereafter, annually, upon the expiration of that licence the appellant renewed it until 1967 without difficulty. In the meantime the authorities were encountering problems in regard to New Territories taxis generally and in particular the four-and nine-seater taxis which had failed to confine themselves to the New Territories in accordance with the conditions of their licences but plied also in the urban areas of Kowloon. There followed various warnings to all registered owners of New Territories taxis culminating with the intimation that if the owners failed to exercise adequate control of their drivers the Commissioner would have no alternative but to refuse the renewal of licences as they expired or alternatively to revoke completely the registration of the offending vehicles. When the then current licence of the vehicle AB 4936 expired on the 31st August 1967 renewal was refused without reason. Following various representations by the appellant he received a letter dated the 6th December 1967, the first two paragraphs of which ran:
3. Following further unsuccessful representations the appellant applied in May 1968 to register the vehicle as a private car and that form of registration was effected in September of that year. 4. In June 1974 the appellant took action against the Attorney General seeking (inter alia) a declaration that he was entitled to register and license one public light bus in place and stead of the New Territories taxi. That the declaration sought was in respect of a bus instead of a taxi was due to the fact that in 1969 there had intervened a complete change of policy in regard to New Territories taxis which had ceased to exist as such, owners of nine-seater or minibus type taxis being thereafter allowed to register and license them as public light buses. No provision was made officially for the owners of the smaller four-or five-seater taxis but in practice they were treated in the same manner and were allowed to register and license public light buses provided that the smaller vehicles were either taken off the road or registered as private cars. The learned judge in the court below found that the action of the Commissioner in refusing to renew the licence in September 1967 was ultra vires and wrongful and that but for such refusal the appellant would have had "authority" to register and license a public light bus in place of the taxi AB 4936. Nonetheless the learned judge declined to grant the declaration sought on the ground of the delay which had taken place between the conclusion of the Commissioner's wrongful conduct in December 1967 and the initial action taken by the appellant in October 1973 and followed by the issue of the writ in June 1974. It is against that refusal that this appeal lies. 5. We have not found of particular assistance the discussion before us as to whether the remedy of Declaration was founded in Equity, Statute or is sui generis for, irrespective of the origins of this type of relief, the real question for us is whether the learned judge was justified in exercising his discretion to refuse relief upon the ground of delay. Delay was not pleaded by the respondent nor explored in the Court below and the appellant had no opportunity of calling any evidence to explain any alleged tardiness upon his part. Mr. Chan, for the appellant, argues that under 0.18 r.8 of the Rules of the Supreme Court delay should have been specifically pleaded being a matter which otherwise would take the appellant by surprise and in this connection quotes the case of Blay v. Pollard and Morris(1) where Scrutton, L.J., dealing with the allegation of fraud, said:-
6. Mr. Edmunds, for the Crown, submits that the fact that delay has not been pleaded is no bar to the Court taking delay into consideration is considering the exercise of the discretion as to whether to grant a Declaration, and relies on the case of Markwald v. Attorney General(2) where Lord Sterndale M.R. said:-
7. It is to be observed however of this extract that it was the obiter dictum of a single judge and that the words "I am not at all sure" amounted to no more than an expression of doubt. We are informed that when at the end of the respondent's case in the Court below the judge referred to the question of delay, counsel then appearing for the Crown indicated that as delay had not been pleaded he did not propose to argue upon that ground. Upon the basis of 0.18 r.8 and that of the case of Blay v. Pollard and Morris(1) we incline to the view, without purporting to decide the point, that if delay was to be relied upon either by the respondent or by the learned judge it should have been pleaded. 8. If that view be wrong, however, it remains to consider whether it was right for the learned judge to exercise his discretion to refuse the Declaration on the ground of delay and, as the appellant argues, of delay simpliciter, that is, without it being shown that the respondent, as the result of delay, was placed in any worse position than that he would otherwise have found himself. No case exists in which refusal has been based upon this ground whereas in Hogg v. Scott(3) a declaration having been refused upon other grounds including section 21 of the Limitation Act of 1938 - a section which has no counterpart in Hong Kong - Cassels, J., after referring to the "considerable delay" of nearly three years upon the part of the plaintiff, went on to say that on that ground alone he would not have been prepared to give a decision adverse to the plaintiff. 9. Counsel for the Crown contends that even if it be open to debate whether the remedy of Declaration is properly regarded today as an equitable remedy, it had its origin in equity which system of law has left its mark upon the manner of the exercise of the judge's discretion. Even if that be so it must be recognised that delay simpliciter has always been held to be immaterial in the case of equitable remedies (see Rochefoucauld v. Boustead(4), In re Eustace(5), Weld v. Petre(6).) On the other hand in the words of Lindley, L.J. in the case of Rochefoucauld v. Boustead:
10. Laches is thus seen to be a more serious matter and consists of a substantial lapse of time coupled with circumstances which make it inequitable to enforce the claim. Delay will accordingly be fatal to a claim if it is evidence of an agreement by the plaintiff to abandon or release his right (see Blake v. Gale(7) or if it has resulted in the destruction or loss of evidence by which a claim might have been rebutted (see Bourne v. Swan and Edgar, Limited(8)) or if the plaintiff has so acted as to induce the defendant to alter his position in the reasonable belief that the claim has been released or abandoned (see Allcard v. Skinner(9).) But in other cases it has consistently been held that delay is immaterial and a recent example of that view arose less than one week before the hearing of this appeal in the case of Lazard Brothers & Co. Ltd. v. Fairfield Properties Co. (Mayfair) Ltd.(10) where Vice-Chancellor Sir Robert Megarry, the learned joint editor of the Snell's Principles of Equity and numerous other works, declined to withhold specific performance merely upon the ground of a delay which had not resulted in the position of the defendant having been changed to his disadvantage. 11. It follows that delay simpliciter should not have led the learned judge in the Court below to withhold the Declaration sought for. It is therefore unnecessary to explore the argument raised on behalf of the Crown based upon the case of Donald Campbell and Company, Limited v. Pollak(11) to the effect that the learned judge was entitled to take delay into consideration because it was something which he had himself observed during the progress of the case. Whether that view be right or wrong we have seen that the refusal to grant the Declaration upon the grounds of delay simpliciter was an error. It may however be doubted whether the case of Donald Campbell and Company, Limited v. Pollak(11) can be relied upon for the proposition striven for by the Crown for not only was that case confined to the issue of costs but in it the House of Lords found that the Court of Appeal was prohibited by statute in the form of the Judicature Acts of 1873 and 1890 as well as by the Rules of the Supreme Court Order LXV r.1 from interfering with the judge's discretion. No such statutory prohibition obtains in the present case. 12. It remains to consider whether the delay has placed the respondent in any worse position than that in which he would have been had this action been commenced shortly after the refusal of the renewal of the licence at the end of 1967. The learned judge made no finding that there was any such effect upon the respondent's position. Mr. Edmunds, for the Crown argues, that that position has deteriorated in that in the meantime there has been a change in the law whereby there is now a limit to the number of licences issued for public light buses. It is to be noted however that the power to limit the number of licences in issue was granted to the Commissioner in 1969 and he took no action in that respect until 1975 which was after the date of the issue of the writ in this case. It may be doubted whether the mere fact that the number of licences in issue is now restricted has placed the Commissioner in any worse position than previously for the ceiling to the number of licences which may be issued is under his own control. Accepting, however, that the Commissioner may be under some disadvantage as a result of the imposition of a restriction upon the number of licences which can be issued, the Declaration which we are asked to say should have been granted by the learned judge was a declaration that the plaintiff be entitled to register and license one public light bus in place and stead of the former New Territories taxi. At the date of the issue of the writ that was precisely the appellant's position and we are unable to accept that the date to which we should have reference is today's date for acceptance of that proposition would result in a situation in which a defendant in the position of the Commissioner could, after the date of the issue of a writ seeking a Declaration, stultify his plaintiff's legitimate remedy and the process of the Court by the issue of new regulations. 13. We allow the appeal and grant the declaration sought in paragraph 10(g) of the appellant's re-re-amended Statement of Claim with costs to the appellant here and in the Court below. Representation: E. Chan (W.I. Cheung & Co.) for appellant. C.B. Edmonds, C.C. for respondent. (1) 1930 1 K.B. 628. (2) 1920 1 Ch. 348. (3) 1947 1 K.B. 759. (4) 1897 1 Ch. 196. (5) 1912 1 Ch. 561. (6) 1929 1 Ch. 33. (7) 1886 32 Ch. 571. (8) 1903 1 Ch. 211 at 219, 220. (9) 1887 36 Ch. D. 145. (10) The Times, 13th October, 1977. (11) 1927 A.C. 732 at 811, 812. |