Cheng Kam Hung v. Attorney General
Read the full judgment text of HCA 1692/1974 on BabelCite. This High Court CFI judgment.
1. The Summons before me is one brought under the provisions of Order 14. It is grounded by an affirmation and no affidavit has been filed in opposition.
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HCA001692/1974 IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION -----------------
----------------- Coram: Mr. Registrar Silke in Chambers. Date of Judgment: 5th September, 1974 Charles Ching, Esq., Q.C., with Mr. C.Y. Lee for Plaintiff. Mr. S. Chiu for Attorney General, Defendant. ----------------- RULING ----------------- 1. The Summons before me is one brought under the provisions of Order 14. It is grounded by an affirmation and no affidavit has been filed in opposition. 2. The summary judgment sought is in the terms, generally, of the claim in the Statement of Claim, that is: -
3. At first blush it seems a somewhat unusual use of Order 14 proceedings, but I am satisfed, and it has not been disputed, that declarations such as are sought here can be made a subject of those proceedings. The Order sought in paragraph (d) of the Claim is one consequential upon the declarations sought in the preceding paragraphs of paragraph 8. 4. Further the point has expressly not been taken as to delay - the Writ was issued on 16th July, 1974; Appearance was on 19th July, 1974; Defence on 26th July, 1974; Summons and Affidavit on 22nd August, 1974. 5. As far as any facts are concerned, I have but those disclosed by the Plaintiff which are not contravened. 6. Briefly the history of the matter is: a letter was sent to the Commissioner for Transport on the 10th July, 1974, by K.C. Yung & Co. on behalf of the Plaintiff herein which made application for the licensing and registration of 200 public light buses. It declared the Plaintiff's intention of Parking these vehicles at Lot 83 in D.D. 168, North Village, Kwuntoi, Fanling, New Territories and of having them serviced at commercial garages. It asked for confirmation of the licensing and registration and requested a suitable date for the inspection of the vehicles. It notified that failure to receive a favourable reply within five days would result in the institution of proceedings without further notice. 7. A somewhat peremptory demand which elicited a reply dated the 12th July, 1974, from the Commissioner stating"........ you are no doubt aware that it has been policy for some years not to issue any more public light bus licences. That being the case, it would be interesting to know on what legal basis you threaten to institute proceedings". I do not think this letter to have been intended to be of great help. 8. A further letter dated the 13th July, 1974, was then sent, this time addressed to the Transport Department, from K.C. Yung & Co., on behalf of the Plaintiff, which fixed a deadline of the 15th July, 1974, at 12 noon after which it would be assumed that the Commissioner's letter of the 12th July constituted a refusal of the Plaintiff's application and a writ would be served without further notice. 9. Mr. Ching for the Plaintiff submitted on six main issues:-
10. I have carefully considered the attractive, and reasonable, submissions of Mr. Ching - his basic reliance on The Attorney General v. Tsang Kwok Kuen [1971] H.K.L.R. 266, his extension of the reasoning in that Full Court decision to this instant case, his condemnation of Section 4(1) and Section 4(2) of the Ordinance, Cap. 220, and in particular Section 4(1) (j) as the basis of Regulations 17 and 17A; his suggestion that if any limitation on public light buses is to be enforced then it should be done, if this itself is intra vires, by the use of Regulation 18B and a notice in the Gazette, his submission that Section 4(1) (b) empowers regulations for the machinery of Registration and Licensing but not to be used for allowing or refusing the actual Registration or Licensing itself; his submission that Section 4(1)(k) could well cover the prescribing of forms but only forms and the contents of such must be intra vires and without additions which are not covered by the specific legislation empowering their prescription. The Commissioner cannot, he says, do as he pleases; he is bound by the enabling section. The registration and licensing of vehicle is a right not a privilege and whether it is outright refusal to register, or a refusal to re-register, or a deletion matters not. He goes on that Regulation 17A is irrelevant in any event as it opens with the words "Without prejudice to Regulation 17 ....." and it is also in direct conflict with Regulation 16. 11. His greatest reliance is placed on Regulation 17 being ultra vires Section 4 of the Ordinance and that this must be so following Tsang case so that the Plaintiff's claims are unarguable and that this is a proper case for summary judgment to be given. 12. Mr. Moshinsky for the Attorney General, not unnaturally, submits that there is room for argument: firstly that the whole matter is academic and because of this no ruling can or should be given, that no Court can give a declaration for the Plaintiff to license; it is the Commissioner who does so, that that which the Plaintiff is seeking is mandamus and for that he should go to the Full Court; that in any event there was no application made in the proper form to the Commissioner so that the Plaintiff has no locus stand in any event; that it is arguable that there was no categoric refusal of the improper form of application contained in the letter of 10th July, 1974; that even if the facts in paragraph 5 of the Plaintiff's affirmation are accepted, they avail the Plaintiff nothing here as there never was a Letter of Authority in the instant case. He relies on Section 4(1)(j) of the Ordinance as providing ample power for the enacting of Regulations 17 and 17A, if there is power to limit then that power an be exercised in any reasonable way. It is of course subject to the scrutiny of the Courts. 13. The matter revolves around Tsang Kwok Kuen case for, if Mr. Ching's submissions are correct and further as I am bound by the Full Court decision, then it follows, as the night the day, that at least the declaration as to the vires of Regulation 17 should be granted Mr. Ching's client. 14. It was quickly pointed out to me by Mr. Ching at the start of his submissions that Regulation 17 was, itself, not in issue in Tsang's case. It was there held that Regulation 17D was ultra vires (a) because there was no expressed power to make regulations cancelling the registration of vehicles; (b) because cancellation of registration was a penalty or punishment not provided for in either Section 4(1)(b) or Section 4(3) of the Ordinance, and (c) an intention to penalize innocent persons is not to be lightly imputed to the legislature and for subsidiary legislation to so provide requires the most explicit enabling legislation. It was further held that once an applicant for the registration of a motor vehicle has complied with the prescribed requirements for registration he has a right to have his vehicle registered. 15. The Tsang case was dealing with the deprivation of a proprietary right of a person, by Regulation, by the imposing of a restriction in the nature of a penalty or punishment without explicit enabling legislation - and, in some cases, without proper notice to the registered owner. 16. I note that passage of the judgment of Rigby, C.J. (as he then was), at page 274:-
17. In the instant case there is a refusal based on "policy" - and I am satisfied there was such refusal - and supported by regulation, to register at all. There was no proprietary right in existence, no "Letter of Authority" and merely a peremptory application without form or fee. 18. It is in my view arguable - though I tend to be sympathetic to Mr. Ching's arguments - whether or not Regulation 17 is ultra vires, coming back to the confines of Order 14, it is not for me to try the issues involved, even though, as Mr. Ching says, I may have all that a Judge might have before me. 19. I would verge on the "conditional leave" order here but I, in the circumstances, do not think that to be the correct order. 20. There will be unconditional leave to defend. 21. I shall hear the parties as to the form to be taken of the "usual order". ORDER 22. Usual directions save and except order as to defence. 23. Reply within 7 days of the 1st day of term. 24. Other times to run from then. 25. Set down within 42 days. Estimated time 2 days. Consultation with Counsel's diary. Certify for Counsel. 26. Dated this 5th day of September, 1974.
Representation: Charles Ching, Esq., Q.C., with Mr. C.Y. Lee for Plaintiff. Mr. S. Chiu for Attorney General, Defendant. |