Wong Wing Hei v. Commissioner for Transport and Others
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HCAL 35/2025 [2026] HKCFI 5820 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 35 OF 2025 ________________________
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__________________ D E C I S I O N __________________ A. Introduction 1.By his Form 86, the Applicant sought leave to apply for judicial review, so as to challenge multiple ‘decisions’ of the Commissioner for Transport (“Commissioner”), the Hong Kong School of Motoring Limited (“HKSM”), and NKT Driving School Limited (“NKT”), in relation to the issuing of driving licences, the administration of motor cycle driving tests and the retaking of tests, and the distribution of personal data in the administration of tests. 2.The Form 86 sought multiple forms of relief in relation to each Putative Respondent. In relation to the Commissioner, the Applicant sought the following relief:
3.In relation to both HKSM and NKT, the Applicant sought:
4.Together with the Form 86, the Applicant filed an affirmation and two diagrams (that were said to show the de jure and de facto procedures to obtain a motor cycle driving licence). 5.I gave directions permitting the Commissioner, HKSM and NKT to file an Initial Response, and for the Applicant to file a Reply. After lengthy extensions of time (due to without prejudice attempts at settlement between the parties, which were eventually unsuccessful), the Commissioner’s Initial Response was filed by Ms Jaqueline Hung and Ms Amiel Lee, Government Counsel, of the Department of Justice. A joint Initial Response from HKSM and NKT was also filed by Mr Jimmy Ma and Mr Keith Tam of Counsel. The Applicant, acting in person, then filed his Reply. 6.Having considered the materials provided with the application, I am satisfied that this application can appropriately be dealt with on the papers. 7.This is my Decision. B. Legal Context 8.It may be helpful first to set out the relevant legal principles and statutory provisions in relation to this case (in particular, driving licences and driving tests), before going into the particular facts giving rise to the Applicant’s claims. 9.In Hong Kong, the Transport Department (“TD”), headed by the Commissioner, is the government agency responsible for transport-related policies, particularly the administration of the RTO. Their duties include, amongst other things, traffic management, maintenance and control of all roads, registration of vehicles, and licencing for all sorts of vehicles (including buses, rail, and private vehicle). Thus, they are responsible for the issuing of all driver’s licences, and the administration of driving tests (which is, of course, a prerequisite to the issue of a licence). 10.It can be kept in mind throughout that road safety is the overriding policy objective of the TD, relevant to and of paramount importance in TD’s regulation of driver training and the application process and conduct of motorcycle driving tests. 11.Since the 1980s, the Government has adopted a two-pronged approach with respect to driver training. The first approach, which was the traditional (and only) approach to driver training prior to the 1980s, was to allow students to be trained by private driving instructors (“PDIs”), who would instruct students through “on-street” driving training (i.e. on public roads). However, with the increase in traffic congestion in the 1970s, the Government adopted a policy to establish designated driving schools (“DDSs”), which would instruct students through “off-street” driving training, by providing training on their own premises, with their own vehicles. 12.The Government has since maintained this two-pronged approach by ensuring that there is a sufficient supply of PDIs, alongside the approved DDSs. As of November 2025, there are five licenced DDSs in Hong Kong, four of which are operated by HKSM through wholly-owned subsidiaries of HKSM (with one of the four operated by NKT). 13.The statutory power of the Commissioner to designate DDSs and regulate their operations is provided in Part 9B of the RTO. In particular, section 88K of the RTO provides the Commissioner the power to designate in writing any place as a driving school and impose such conditions relating to the designation as she thinks fit. The section also provides that the designation shall authorise the proprietor to operate that place as a driving school in accordance with Schedule 9 and the conditions as may be specified by the Commissioner in the designation. 14.Under section 88N of the RTO, the ancillary power is granted to the Commissioner to issue a code of practice setting out the requirements, procedures and standards in respect of the content and duration of driving instruction courses and “any other matter he thinks fit”. 15.For a person to be issued a driving licence, he has to complete the relevant examinations that are administered by the TD. Generally, for normal motor vehicles, the examination consists of two parts: a written test (“Part A”), and a road test. Part A, which is uniform amongst all types of vehicles, is a written test that requires the candidate to satisfy an authorised examiner that he is fully conversant with the Road Users’ Code (promulgated under section 109 of the RTO). Since the content of Part A goes to the general knowledge that any road user should possess, a candidate who has previously passed Part A may be exempt from retaking it for the purposes of obtaining a licence for another type of vehicle (for instance, where a person already holding a light goods vehicle licence is attempting to obtain a motor cycle licence). 16.But unlike for other vehicles, candidates wishing to obtain a licence for motor cycles are required to pass an additional test. According to regulation 12C and the Eleventh Schedule of the Road Traffic (Driving Licences) Regulations Cap 374B (“Regulations”), to obtain a licence candidates must pass a Part B test (“Part B”) and a Part C test (“Part C”), both of which are practical tests. Part B, which can only be done after the completion of a driving instruction course at a DDS, is a basic driving skills test (or in other words, a competence test) conducted at a DDS. It requires the candidate to perform basic skills, such as reading a licence plate at a distance of 23 metres, being able to start the engine of the motor cycle, moving straight or at an angle, turning corners correctly, and being able to stop the motor cycle properly. Part C, on the other hand, is the equivalent to the road test for other vehicles. 17.The additional requirement for a mandatory competence test for motor cycles is justified by the Government through statistics and the general view that motor cycles are much more dangerous to operate as compared to all other motor vehicles. For example, the Commissioner identifies that according to LegCo, the accident rate of learner motorcyclists in 1988 was 9.3 per 1000 learners as compared to 0.5 per 1000 learners for private cars. 18.It is also important to note the difference in the candidates taking the Part B and Part C tests. Under the usual practice (for other vehicles), a candidate may apply for a learner’s driving licence (“LDL”) under regulation 12 of the Regulations, so long as he delivers a signed application together with his identity document to the Commissioner, and pays the prescribed fee of $510. However, for candidates applying for an LDL in relation to a motor cycle, regulation 12A of the Regulations stipulates that the candidate must also have passed, within 2 years prior to date of application, the Part A and Part B tests referred to under regulation 12C. 19.In other words, a candidate taking the Part B test (which is a practical test) will not hold an LDL. This is crucial, because an LDL provides the holder the permission to drive on certain public roads (subject to designated time windows, routes and other restrictions). As a result, it naturally follows that the Part B test cannot be administered on public roads, but rather only on private premises (i.e. at DDSs). Indeed, this is explicitly mentioned in paragraph 2 of the Eleventh Schedule of the Regulations. The purpose is to ensure motorcycle learner drivers are properly trained and well-equipped off-road facilities under the guidance of experienced driving instructors, before they are allowed to take the Part B Test and, thereafter, practice on the roads. 20.Also relevant for the purposes of this application, is the exact procedure that a candidate is to follow from start to finish, in obtaining their motor cycle driving licence. As noted by the Applicant (and partly acknowledged by the Commissioner in some regards), there may be some differences between the statute and actual practice. I shall, however, first recite the legal framework here, and leave discussing the actual practice to my later analysis of the Applicant’s submissions. 21.According to regulation 12B(1) of the Regulations, a candidate may only apply for a motor cycle driving test (including all Parts A, B, and C), by delivering the following documents to the Commissioner: (1) his identity document, (2) a course certificate issued under Part 9B of the RTO, and (3) a signed application in a form specified by the Commissioner. A course certificate, as defined under section 88J of the RTO, refers to a certificate in a form specified by the Commissioner indicating that a person has completed a driving instruction course at a DDS. Therefore, a person wishing to apply for a motor cycle driving test must first enrol in a driving instruction course at a DDS (paying the Commissioner-approved fees), fully attend the course and complete it, in order to receive a course certificate. 22.After the candidate submits the abovementioned documents and pays the prescribed fee, the Commissioner will, according to regulation 12B(2), issue a motor cycle driving Test Form (“Test Form”) to the candidate, which shall notify the candidate of the date, time and place of the driving test, and it is valid for 18 months. It is only after this that the candidate proceeds to the three parts of the motor cycle driving test. Regulation 12C(1) also specifies that no part of the test shall be taken until the preceding part is completed (i.e. the candidate has to pass Part A to take Part B, and pass Part B to take Part C). 23.After completing Parts A and B, the candidate may apply for an LDL to take Part C. Upon successful completion of the Part C test, the candidate may apply for a probationary driving licence under regulation 12G, which will eventually turn into a full driving licence upon completion of the probationary period. C. Factual Background 24.The factual background, as provided by the Applicant in the Form 86, can be briefly summarised as follows. 25.On 3 August 2024, the Applicant enrolled in the driving instruction course provided at the Yuen Long Driving School (“YLDS”), another one of the DDSs run by HKSM, intending to obtain a motor cycle driving licence. As a holder of a light goods vehicle driving licence, the Applicant was exempt from taking Part A for the purposes of this application. 26.For this enrolment, the Applicant paid HK$3,460 to YLDS, which consisted of: (1) a fee charged by TD for Part B, (2) a vehicle rental fee, and (3) a training course fee. YLDS then provided the Applicant with a “motor cycle driving Test Form for Part B”, which provided a fixed test date and time apparently picked by the Applicant upon enrolment. It is the Applicant’s submission that this Test Form was not in the standard form as usually provided by the TD, as the Applicant was required by YLDS to download its app to access the time and date (instead of a typical A4 sheet of paper). 27.The Applicant then completed the driving instruction course with full attendance by 28 September 2024. However, he failed the Part B test which was conducted two days later on 30 September 2024 at YLDS. 28.The Applicant immediately attempted to reapply for Part B upon failing, but through TD instead of YLDS. However, TD’s web system did not provide any option to reapply, and the Applicant was informed by a TD officer over the phone that applications for Part B may only be made through DDSs. 29.The Applicant then reapplied for Part B through YLDS. It is his case that despite only requesting to reapply for Part B, he was told by YLDS that a person cannot directly reapply solely for Part B. Instead, he must also rent a vehicle from the DDS and also pay for training lectures and practice sessions from the DDS. He also asserted that YLDS informed him that a reapplication would only be accepted if it was made within two months of the initial failure (of Part B). 30.According to the Applicant, when he emphasised that he did not want to partake in any lecture or practices, he was told that there was a “minimum spending plan” of HK$2,590 to retake Part B, which included the application fee, a vehicle rental fee, two lectures and one self-practice session. As the staff told him that attendance at these two lectures and self-practice session would not affect the ability to re-sit Part B, he paid the HK$2,590 fee on that same day. 31.The Applicant then passed Part B in his retake at YLDS on 6 December 2024, where he used YLDS’s rental vehicle. D. Grounds of Review 32.Leave to apply for judicial review will not be granted unless the applicant presents a reasonably arguable public law ground of review which enjoys realistic prospects of success. 33.In his Form 86, the Applicant has submitted multiple grounds of review. They are, however, not listed in clear order. For the sake of uniformity, I will therefore adopt the “decisions” listed in the Commissioner’s Initial Response (and repeated in the Applicant’s Reply), as the grounds of review. 34.In her Initial Response, the Commissioner listed and responded to seven ‘decisions’ that the Applicant apparently challenged, and also responded to an eighth point which she listed under “Other Matters”. The Applicant, in his Reply, then contended that the eighth point was actually an eighth ground of review. As a result, I will proceed to consider the following eight intended grounds of review, being:
35.As will be seen (and as was not denied by the Applicant in his Reply), some of the Grounds have since become academic. I will, however, proceed to deal with each intended ground of review in order. E. Ground 1 36.The Applicant’s submission under Ground 1 goes to the alleged unlawful delegation by the Commissioner of her power to accept and handle applications for motor cycle driving tests to DDSs. Essentially, the Applicant argued that DDSs are delegated power by the Commissioner to accept applications, which can be seen by (1) DDSs not issuing Test Forms in the TD’s style (and instead provides test information on its own mobile applications), (2) that the DDSs can select the intended test date for the applicant upon request (as compared to the TD’s usual practice of only providing an “end-of-list” appointment), and (3) that the DDS’s header is shown on the receipt for the Test Form payment (and not the TD’s). 37.In response, the Commissioner submitted that DDSs, in receiving and handling applications, were merely acting as agents, and that she did not delegate any authority. She submitted that the Applicant’s submission is premised on misunderstandings of fact. In his Reply, the Applicant noted the details provided in the Initial Response, and expressly made no further reply. 38.In any event, I accept the Commissioner’s submission. The application process shows that the DDSs are acting, essentially, as an agent or ‘middleman’ for the purpose of facilitating application processing. The DDSs in no way holds any power or discretion to accept or deny any driving test applications (which remains with the Commissioner). 39.According to Appendix G of the Code of Practice of YLDS, which dictates the procedures and arrangements for student enrolment and allotment of driving test appointments at YLDS, and the Commissioner, the procedure works as follows:
40.Thus, the internal procedure for applications shows that DDSs work hand in hand with the TD in processing data and test applications. The TD has not delegated its power to approve or disapprove test applications as suggested by the Applicant. I also do not see how the three points/evidence provided by the Applicant reasonably support the contention that the DDSs are acting under a power delegated by the Commissioner. 41.The first point is that DDSs do not issue Test Forms in the “style” of the TD, but rather provide test information on their mobile applications. However, there seems to be confusion from the Applicant between the Test Appointment Notice that is issued by DDSs and a driving test appointment letter that is issued by TD (for direct applications to the TD – which, of course, is not possible for Part Bs as in the present case). Whilst the appointment letter issued by TD includes information such as test date, time, centre, and Test Form number, it is not a strict, mandated form that the Commissioner must follow under all situations. I find it reasonable for DDSs to have their own administrative arrangements as to how test information is to be communicated to candidates. I agree with Ms Lee that such administrative arrangements, like the use of the Test Appointment Notice, do not, in form, turn DDSs into a delegated authority. 42.The second point as asserted by the Applicant is that DDSs can select the intended test date for the applicant upon request. It is unclear as to what is the Applicant’s basis for this statement. As clarified by the Commissioner, DDSs do not have the right to do so – the TD administers all test appointments, and the first-come-first-served principle is upheld strictly. 43.The third point is that the receipt for Test Form payment shows the DDS’s title and not the TD. I do not accept this submission. Under the agency arrangements, the DDS clearly accepts the payment from the student, and passes it on to the Commissioner in full, given that the applications are made through the DDS. This does not provide any support for the submission that the DDS is a delegated authority. 44.It has also been brought up by both the Commissioner and HKSM that the driving test application form as provided under regulation 12B(1)(c) of the Regulations explicitly allows the use of an agent in submitting the application. Indeed, paragraph 7 of the declaration of the application form (TD 82) provides the applicant with the power to appoint a person “as the agent to submit and handle the application on [his/her] behalf, including the collection of related licence, permit and/or other documents”. Therefore, it is clearly within the power of the Commissioner to engage DDSs as agents. 45.Whilst it is not strictly necessary for me to comment on whether the Government should engage DDSs as private sector agents in this process, I note the Commissioner’s argument that it is reasonable and justified as a matter of policy from the perspectives of costs, resource allocation, and administrative convenience – particularly given that both Part B and the driving instruction course must be conducted within the private premises of a DDS. In any event, there is no arguable unlawful delegation – or any illegality in relation to the engagement of DDSs in the acceptance and handling of driving test applications. The DDSs operate in accordance with the relevant legislation and the code issued by the Commissioner. 46.As a result, Ground 1 is not reasonably arguable with any realistic prospect of success. F. Ground 2 47.Ground 2 goes to the alleged unlawful practice by the Commissioner in not accepting direct applications for the Part A and Part B tests. The Applicant contended (in his Reply) that regulation 12B(1) of the Regulations clearly mandates that all applications be delivered to the Commissioner, and that there is no provision that requires submission through DDSs. 48.I disagree. The Applicant’s arguments are premised on a strict, overly literal interpretation of the statute – which is not the modern approach to statutory interpretation. 49.The law in relation to statutory interpretation is well-settled, and a summary can be rehearsed as follows. Words are construed in their context and purpose, which is considered alongside their natural and ordinary meaning. A purposive and contextual interpretation, however, does not disregard the actual words used. Rather, the Court is to ascertain the intention of the legislature as expressed in the language of the statute: see, for example, my judgment in Ha Che Wai v Medical Superintendent of the Pamela Youde Nethersole Eastern Psychiatric Observation Unit [2025] HKCFI 5681 at §140. 50.In this case, I do not think that it was the intention of the legislature to require an applicant personally to deliver their application to the Commissioner. Rather, an application simply needs to reach the Commissioner (or the TD), and it is the Commissioner that has the power to choose whether or not an application is approved. Whether it is directly delivered to the Commissioner by the Applicant himself or whether it goes through an agent (i.e. DDSs), does not change the reality that the Commissioner has the ultimate say on the admissibility of the application. 51.I also do not accept the Applicant’s submission that administrative convenience does not justify this practice. In my view, administrative convenience does indeed provide reasonable justification for how the TD carries out the application process by using DDSs as agents, as long as it does not infringe upon the underlying basis of the legislation. So long as the applications are delivered to the Commissioner in the form provided by the applicants to the DDSs (i.e. the application was not altered in any way by the DDS), it is in theory, no different to the Applicant directly submitting the documents to the Commissioner. 52.It may also be of relevance to bear in mind that Part B can only be carried out in DDSs, given that Part B candidates do not hold LDLs. It is not reasonably arguable for the Applicant to say that the Commissioner is acting unlawfully by not accepting direct applications for Part B tests, and the use of DDSs as agents in this procedure is not, as the Applicant puts it, “an unlawful abdication of the Commissioner’s function”. 53.Thus, Ground 2 is not reasonably arguable with any realistic prospect of success. G. Ground 3 54.The initial premise of Ground 3 was that candidates who failed Part B were forced to take a Repeater Course before they were allowed to retake the test. This ground has since become academic, as the TD has, following this judicial review application (which was made in January 2025), requested all DDSs explicitly to offer the option of not taking the Repeater Course to ensure full consistency with the RTO and the Regulations. This took effect from 18 April 2025. 55.The Applicant submitted that it would be unjust for the Court to dismiss this ground simply because it has become academic, given that the TD and DDSs only amended the practice on 18 April 2025. He cited Law Mei Mei v Airport Authority [2018] HKCFI 1940 in support, where the Court held that dismissing an application for judicial review solely on the ground that it has become academic due to subsequent regulatory amendments would be unjust, particularly where the amendments were made after the Applicant raised the issue. With respect, I do not think that Law Mei Mei is directly applicable to the present situation. 56.In Law Mei Mei, Chow J (as he then was) held at §45 that where an application is said to be academic (in the sense that the declaratory relief sought by the applicant would have no further utility), it did not necessarily follow that the Court should dismiss the application without consideration of its substantive merits. Rather, whether the Court should do so involved the exercise of judicial discretion. For guidance, he cited the analysis of Ma CJHC (as he then was) in Chit Fai Motors Co Ltd v Commissioner for Transport [2004] 1 HKC 465, which established a non-exhaustive list that the Court may use in its determination:
57.In that case, Chow J found that it fell within sub-paragraph (2) – and that there would be grave injustice if he dismissed the application for judicial review without consideration of its substantive merits simply because the Secretary for Security had exercised the power to amend the relevant regulations after the event. It was particularly relevant that the Government was plainly aware that an issue had been raised on whether the Airport Authority acted contrary to the applicable regulations even before the commencement of the proceedings. The timing of the amendment of the relevant provisions – only after the Court had rejected the academic contention at the leave hearing – was also important. 58.In the present case, there have only been a few grounds of this application that have been rendered academic. A ruling that this ground is academic does not in itself, dismiss the entire application. Further, the amendments made by the Transport Department were made promptly – unlike in Law Mei Mei, where they were only made after leave had been granted. In any event, the amendments made were not as substantial. The TD, through these amendments, merely clarified certain pre-existing positions. It was not, per se, a complete volte-face. 59.Indeed, it is HKSM’s submission that a Repeater Course was never compulsory. Rather, it was their long-standing practice to recommended every Part B re-taker to enrol in the Repeater Course. This is evidenced by the case of a former student Mr Cheung (who re-sat his Part B test on 23 June 2023 at the New Kwun Tong Driving School), who decided not to do the Repeater Course but rather hire a motor cycle for self-practice. 60.It therefore seems to me that this is a case where there was a lack of clarity in relation to the “requirement” of taking the Repeater Course, which has now been corrected. 61.I acknowledge that the Applicant has submitted that it is in the public interest for this Court to find the Repeater Course unlawful to enable other test applicants to pursue civil claims for fees paid. However, in my opinion, the primary issue in relation to this ground was the taking of the Repeater Course, and that fees may have been paid for the Course was a consequence of it. As a matter of principle, I do not think that the potential retrospective seeking of fees constitutes sufficient utility for the Applicant to rely on in keeping this ground “alive”. 62.As this ground has been rendered academic by the enforcement of TD’s instructions since 18 April 2025, this Ground 3 cannot succeed. H. Ground 4 63.Ground 4 goes to the Commissioner’s acquiescence to the DDSs’ allegedly unlawful practice of not allowing candidates to use their own vehicles for Part B, which resulted in a “hidden” mandatory vehicle rental fee (paid to the DDS) that is not mentioned in the RTO. 64.According to regulation 12C(5) of the Regulations, a candidate who wishes to undergo Part B or Part C shall provide a motor cycle at his/her own expense, and an authorised examiner may refuse to conduct a test where they have reason to suspect that the motor cycle is not suitable for the purpose or is not in a good mechanical condition. In other words, the law provides that candidates may use their own test vehicle. 65.However, as pointed out by the Commissioner, this requirement includes the insurance requirement under section 4 of the Motor Vehicles Insurance (Third Party Risks) Ordinance Cap 272, which states that it is not lawful for any person to use a motor vehicle on a road unless there is in force in relation to the user of the vehicle a policy of insurance or such a security in respect of third-party risks – and section 3 extends this provision to cover private roads. 66.As noted by both the Commissioner and HKSM, it is virtually impossible for candidates – as a person without an LDL (which can only be obtained after Part B) – to obtain third-party risks insurance coverage for their own vehicle for the purposes of taking Part B. 67.Indeed, even in the transcripts of the recordings provided by the Applicant in his Reply, it can be seen that the representative for the TD repeatedly stated that it would be difficult for candidates to use their own vehicles due to insurance-related issues, and it is the reason why the DDSs provide vehicles for hire for Part B: see, for example, the TD representative’s statement at 07:16 of the transcript dated 13 December 2025 (which I note, was a call between the TD and the Applicant that took place several months after the Form 86). 68.It has also been put forward by both the Commissioner and HKSM that the DDSs, in principle, allow students to use their own vehicles if they are able to meet the requirements. HKSM provides an example of a motor tricycle student Mr Ho (the motor tricycle test being identical to the motor cycle test). In Mr Ho’s case, he was allowed to use his own motor tricycle for the driving instruction course and Part B test in September 2016. After he encountered difficulties in securing the third-party risks insurance coverage for his motor tricycle for the purposes of attending the driving instruction course and Part B, HKSM assisted him in arranging insurance (on a discretionary basis). 69.Therefore, I do not see any reasonably arguable basis for the Applicant’s submission on the alleged unlawful practice of not allowing candidates to use their own motor vehicles for Part B. Rather, it was the case that given the difficulties in obtaining insurance and ensuring that the motor vehicle met the test requirements, the DDSs, for the sake of making things convenient for its students, provided vehicles for hire (which included third-party risk insurance). 70.I also do not see the basis for the Applicant’s argument that the vehicle rental fee was “hidden”. The RTO itself provides that the candidate should provide the motor cycle for the test “at his own expense”. This clearly indicates that there is a cost to be paid for the use of a motor cycle in relation to the test, regardless of how the or fee is paid or to whom the cost or fee is paid. 71.Ground 4 is not reasonably arguable with any realistic prospect of success. I. Ground 5 72.The initial argument under this ground was stated to be the practice of not allowing applications to retake Part B unless the application was made within two months of an applicant’s failure of Part B. The TD’s response was that this argument was misconceived, given that although it was the practice of the DDSs to ask re-take candidates to sign up for the Repeater Course within two months to refresh their techniques, there was never any imposition of any time limit on an application to retake Part B. 73.The Commissioner further justified this practice by stating that most candidates would lose their riding skills if they did not practice over two months, which is crucial for Part B, and candidates are unable to practice on their own on public roads, since they are not eligible for an LDL. Therefore, if candidates applied to retake Part B more than two months after their failed attempt, DDSs would encourage them to retake the whole driving instruction course instead (as opposed to the Repeater Course). 74.In his Reply, the Applicant acknowledged that his initial phrasing was imprecise, and clarified that his ground actually referred to the “oppressive” practice of the DDSs, which despite not being a strict time bar, resulted in the imposition of additional costs on students. He also submitted that this ground should be considered under the same reasons provided under Ground 3. 75.However, just like Ground 3, I find that this ground is premised on a misconception due to a lack of clarity. It is the DDSs’ practice to recommend candidates to re-enrol on the Repeater Course, particularly within two months to ensure that their skills remain fresh. This recommendation is not a mandatory requirement, and I do not see any reasonably arguable basis to find this practice unlawful. 76.If anything, this practice seems rather sensible and reasonable, given that re-take candidates cannot practice and refresh their skills elsewhere (as they do not hold an LDL). It is important to keep in mind the danger in driving motor cycles, in view of the TD’s responsibility in ensuring road safety. Advising candidates to take the safest option is not, in my view, an “oppressive practice”. 77.Ground 5 is not reasonably arguable with any realistic prospect of success. J. Ground 6 78.Ground 6 pertains to the practice of the DDSs of not providing any course certificate unless requested by the candidate. It has been submitted by the Commissioner that this ground is now academic, as the DDSs have since 11 March 2025, issued a course certificate in paper form to every candidate as per the TD’s request. 79.Further, the Commissioner submitted that the original practice of not providing a course certificate (unless requested), which streamlined the driving test procedure from both an administrative and cost perspective, complied with the Regulations and the RTO. This is because in 2006, with the introduction of electronic records of road test results, the TD no longer required applicants to submit a physical course certificate as part of their test applications. 80.The Commissioner provided the following justifications in relation to this practice:
81.The Commissioner’s submissions were acknowledged by the Applicant’s reply, who made no further submission in relation to this ground. 82.As a result, I find that this Ground has been rendered academic, and I need not deal with it for the purposes of this application. K. Ground 7 83.Under Ground 7, the Applicant submitted that the failure of the Commissioner to require DDSs to provide departmental PICSs and PPSs (under the PDPO) in the course of processing applications for motor cycle driving tests was unlawful. The Applicant further pointed out in his Reply that the PICS provided by the DDSs did not clearly indicate data redistribution to TD or properly inform him about the potential for data transfer to third parties. 84.I do not accept this ground. In the PICS and PPS provided by HKSM (and NKT), it provides that HKSM (and the DDSs by extension) may use and retain personal data provided by an applicant for the purpose of, amongst others, processing of their service application and provisioning of the services. It also provides that HKSM may disclose and transfer the applicant’s personal data to the following parties to use, disclose, process or retain for the purpose(s) mentioned above, which include (amongst others) HKSM’s agents, contractors and service providers for the provision of their services, HKSM’s affiliated companies and business partners, and regulatory bodies, law enforcement agencies and courts. 85.In my view, it is clear that the purpose of “processing an applicant’s application and provisioning of HKSM’s services” would encompass the use of personal data in registering for motor cycle driving test applications. It also logically follows that this personal data must be submitted to TD for the processing and approval of the driving test applications. This redistribution of data is clearly envisioned in the PICS, and it certainly does not contravene Data Protection Principle 3 in Schedule 1 of the PDPO, which prohibits the use of personal data for a new purpose without the prescribed consent of the data subject. 86.This is further supported by the fact that in each of HKSM’s sales receipts issued to students upon completion of enrolment, there is a Customer Declaration, which provides (amongst other things) that based on the PDPO, HKSM may “collect, acquire, hold, store and use personal particular and information given by [the student] during enrolment and the driving test forms and test results after the driving test(s) for registration and recording purpose”, and that “HKSM or its relevant person or associated entities may utilise such information for conducting any lawful business”. 87.Thus, it is evident that the redistribution of the Applicant’s personal data was included in HKSM’s PICS/PPS, and there was no failure by the DDSs to provide a clear statement in relation to such data redistribution (and no failure by the Commissioner to regulate this practice). 88.In any event, the Commissioner has noted that following the Applicant’s complaints, the TD instructed all the DDSs to provide the full set of the TD’s driving test application form (which include the “Notes About Personal Data” section) to applicants during the enrolment process since 13 January 2025. This, the Commissioner contended, rendered this ground academic. 89.Also, as Counsel for HKSM and NKT have rightfully pointed out, the Applicant has an available alternative remedy in making these complaints regarding non-compliance of the PDPO, which is to the Privacy Commissioner for Personal Data, who is best placed to deal with these matters as the only authority in Hong Kong entrusted with investigatory and prosecutorial powers in relation to the data privacy of individuals. Judicial review, therefore, is not the correct avenue to take with regards to this ground. 90.Hence, Ground 7 is not reasonably arguable with any realistic prospect of success. L. Ground 8 91.The Applicant’s contention under Ground 8 was that there was an inconsistency between legislation and the TD’s actual practice in relation to the issue of Test Forms prior to the obtainment of course certificates, and that this practice was contrary to the regulatory intent. 92.As mentioned in Section B above, the Regulations provide that a course certificate is one of the requirements for an application for a driving test, and accordingly it should be obtained prior to applying for any part of the driving test (including Parts A, B, and C). Also mentioned under Ground 6, is the idea that course certificates were no longer issued on an automatic basis (prior to 11 March 2025), for the sake of administrative convenience (in terms of both time and costs). This was justified on the basis that only a candidate who had completed the driving instruction course would be allowed to partake in Part B (which, in essence, meant that they in theory were eligible for/had obtained a course certificate by the time of the Part B test), and that the records, now being kept electronically, removed the need for the handing-in of physical certificates. 93.As I see it, the Applicant’s submission under this ground hence targeted Part A – namely that the Commissioner, in practice, will issue Test Forms to candidates for Part A even though they have yet to complete the driving instruction course. In his Reply, the Applicant sought to emphasise that allowing an applicant to take the Part A test before completing the driving instruction course is not merely something potentially not entirely consistent with the regime, but a direct reversal of the sequence mandated by regulation 12B. He also pointed to potential inconvenience rather than convenience caused by what the Commissioner referred to in her Initial Response as a “facilitation measure”, and that it removes choice from candidates who for valid reasons might prefer to follow the sequence set out in the Regulations. On the other hand, the Applicant recognised that some candidates may prefer the current sequence, which allows a shorter gap between the course and the Part B test, so that he would be willing to amend the relief sought by him in his declaration set out in the Form 86 in effect to permit candidates to follow either sequence. 94.Firstly, I would note that the issue advanced by the Applicant under this ground does not arise in the present situation. The Applicant was exempt from taking Part A in relation to his motor cycle driving test because he had previously passed Part A when obtaining his light goods vehicle driving licence. This means that this ground is premised on a hypothetical, which the Court, in usual circumstances, would not entertain. 95.In any event, I do not think that upon a proper reading of the statute (including its context, purpose and actual language used), this practice can be seen as necessarily unlawful. 96.To provide the general legislative context (and as a basis of comparison), it may be useful to look to the provision governing the application for driving tests in relation to general vehicles (i.e. all motor vehicles other than motor cycles, motor tricycles, taxis, and ride-hailing vehicles), which is regulation 31 of the Regulations. Under regulation 31(1) (which is the general counterpart to regulation 12B), a person who wishes to apply for a driving test shall deliver to the Commissioner a signed application in a form specified by the Commissioner. He shall also state in the application the class of motor vehicle (in relation to which the test is) and the particulars of the LDL or temporary driving licence, if any, that is held by the applicant. 97.The regulation, however, does not specify any course certificate as a requirement. So long as the application is submitted to the Commissioner and the prescribed fee is paid, the Commissioner will, under regulation 31(2), issue a Test Form. Hence, the course certificate requirement is only valid for an application for a motor cycle driving test. 98.It is also worth noting that Part A is uniform across all driving tests for all types of vehicles – which can be seen by the exemption given to candidates who have already passed Part A on a previous occasion (for example, the Applicant). Yet, an applicant for another test (for example, a light goods vehicle driving test) is not required to take a driving instruction course prior to taking Part A. 99.Therefore, in my view, the initial legislative purpose of the course certificate was to ensure that the candidate wishing to take the motor cycle driving tests had completed the driving instruction course. Given that the driving instruction course provides the skills required to pass the practical tests (i.e. Parts B and C), the intention was to set a minimum threshold to ensure the safety of both the candidate and the examiner – and other road users – in carrying out the practical tests. I think it less likely it could have been intended by the legislature to impose the driving instruction course (i.e. course certificate requirement) on Part A, given that Part A is solely on the Road Users’ Code. 100.But whilst I hold the Commissioner’s practice to be within her powers under the legislation, it may still be beneficial to reconcile the procedural inconsistencies identified under regulation 12B – which the Commissioner described as technical and procedural, without compromise of road safety. Indeed, the Commissioner undertook in her Initial Response to review and refine the arrangements, or procure amendments to the Regulations where necessary. This may be helpful to prevent any misunderstandings in the application of the law. On that basis, the general point of the relief sought by the Applicant seems to be in train (with ultimate policy to be decided by the Commissioner, and not by the Court). 101.Nevertheless, Ground 8 is also not reasonably arguable with any realistic prospect of success, and/or is or has in effect become academic. M. Non-Exhaustion of Alternative Remedies 102.Counsel for HKSM and NKT has put forward that the Applicant brought these judicial review proceedings without exhausting all available remedies. They submitted that YLDS (where the Applicant was a student) had put in place various means for students to express opinions or lodge complaints about the training and services, including a Service Improvement Program Slip (available at the reception of a DDS), emails, customer service hotline and contacting customer service representatives at the YLDS Services Counter. Reference was also made to brief complaint procedures in relation to HKSM that were provided under “Student’s Charter” in the HKSM Rules and Regulations, and under paragraph 14 of the “Important Notice to Student (Motorcycle Course)”. As there was no record of the Applicant lodging any complaint through these channels, the application was said to be premature and/or an abuse of the judicial process. 103.I do not accept this submission. The submissions made by the Applicant were in relation to the operation of the rules and regulations, as well as the procedure in taking exams. In my opinion, the complaint procedures provided by the YLDS or HKSM do not cover the issues and concerns raised by the Applicant. 104.Nevertheless, as I have found no reasonably arguable merit in the Applicant’s intended grounds of review, this point is not determinative of this application. N. Result 105.The Applicant has failed to identify any reasonably arguable grounds of review with any realistic prospect of success. Further, some of the points raised are or have become academic. 106.The application for leave to apply for judicial review is hence dismissed. 107.I make no order as to costs.
The applicant, acting in person Ms Jacqueline Hung and Ms Amiel Lee, Government Counsel, of the Department of Justice, for the 1st putative respondent Mr Jimmy Ma and Mr Keith Tam of Counsel, instructed by Sun Lawyers LLP, for the 2nd and 3rd putative respondents | ||||||||||||||||||||||||
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