Tang Yuk Chun v. Law Sui Man and Another

DCCJ013517/2001

DCCJ 13517/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 13517 OF 2001

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Coram: H.H. Judge Wong in Chambers

Date of Hearing: 5 May 2003 and 6 May 2003

Date of Handing Down Reasons for Decision: 16 June 2003

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REASONS FOR DECISION

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Background

1.The Plaintiff is the registered owner of the ground floor No. 160 Johnston Road with the side of her property fronting Triangle Street. Since July 1990 she has rented out the shop fronting Triangle Street. The last tenancy was a yearly tenancy commencing from October 2000 at a monthly rental of $18,000.00.

2.The 1st Defendant is a licensed fixed-pitch hawker to run the fixed-pitch on the pavement of Triangle Street at the side of 160 Johnston Road.

3.The Plaintiff claims that on or about 7 June 2001 the 1st Defendant erected a wall stall on the side wall of her property causing holes and other damage to the side wall and further installed electrical appliances, wiring and/or other electrical equipments onto the side wall. As a result the stall completely sealed off the side wall and the side shop and prevented access to the Plaintiff's property from Triangle Street.

4.She claims against the 1st Defendant for damages and an injunction, the 2nd Defendant for a declaration that the licence was invalid.

5.The 1st Defendant issued a summons for direction under O.16 r.8(4) for contribution and/or indemnity by the 2nd Defendant in respect of any sum which the Plaintiff may recover from her.

6.The 1st Defendant in her affirmation exhibited her draft Statement of Claim.

7.The 2nd Defendant opposes his application.

The 1st Defendant's Statement of Claim

8.In the Statement of Claim the 1st Defendant relied on the following causes of action:-

(1) breach of contract

(2) misrepresentation under S.3 of the Misrepresentation Ordinance and

(3) negligence.

(1) Breach of Contract

The 1st Defendant's contention is that the licence constitutes a contract between the Director of Food and Hygiene and the licencee/Upon payment of licence fee the 1st Defendant was permitted to occupy that pitch for hawking.

(2) Representation

By entering into the agreement there was implied representation that the Director had legal authority to allocate the fixed-pitch licence on the pavement.

(3) Negligence

The Director owed the 1st Defendant a duty of care.

The 2nd Defendant opposes the 1st Defendant's application on the ground that none of those causes of action is valid or has any prospect of success.

DID THE LICENCE CREATE A CONTRACT

9.The licence was issued pursuant to the Hawker Regulation Cap. 132 AI and subject to the Conditions set out in the licence.

10.The Director in issuing the licence merely exercised his statutory function he did not enter into a contract with the licence holder. This is analogous to various directors in Government departments issuing various licence such as business licence, driving and vehicle licences which are within their statutory function. This is different from an owner of a property granting licence to the licence to use certain part of his property.

11.Further Condition 13 of the licence states "The licence does not vest any proprietary rights or interests in land in the licence. Any dispute over the use of any part of the stall (or pitch) between the licensee and a private land owner has to be resolved between the parties and the Director disclaims any responsibility or liability in such a dispute."

12.In the premises I do not find that by issuing the hawker licence the director has entered into a contract with the 1st Defendant.

MISREPRESENTATION

13.The 1st Defendant claimed that there was implied misrepresentation and sought damages pursuant to S.3 of the Misrepresentation Ordinance Cap. 284. S.3 is applicable only when there is a contract. In view of my finding above that there was no contract, the 1st Defendant's claim under his head must therefore fail.

NEGLIGENCE

14.The Plaintiff's claim against the 1st Defendant is that she had erected a wall stall and caused holes and other damages to the side wall and that she had installed electrical appliances, wiring and/or other electrical equipments onto the side wall. In effect the Plaintiff claims that she had committed acts of trespass onto the side wall.

15.The licence was originally granted to her father. There was no complaint by the Plaintiff against her father.

16.The licence permitted the 1st Defendant only to operate a hawker stall at that location. It does not permit her to trespass onto the side wall nor did the licence permit her to commit any civil wrong.

17.The Director could not have reasonably foreseen that by issuing the licence to her she would commit acts of trespass onto the Plaintiff's premises.

18.Further by Condition 13 of the licence and the declaration by the 1st Defendant that she would be responsible for all liabilities and costs in relation to any disputes and issues in respect of the licence, the Director is exempted from any liability arising out of the licence.

O.16 r.8(1)

19.O.16 r.8(1) states "..... the Defendant may, without leave, issue and serve on that person a notice containing a statement of the nature and grounds of his claim or, as the case may be, of question or issue required to be determined."

20.For reasons above none of the matters or issues raised by the 1st Defendant has any prospect of success. I therefore will not give any 3rd party direction and dismiss the 1st Defendant's Summons for Directions.

31. Costs to the 2nd Defendant. Certificate for counsel.

Representation:

Mr. Ng Man Sang, Allan instructed by Messrs. Yip, Tse & Tang for the 1st Defendant.

Mr. Anderson Chow instructed by Department of Justice for the 2nd Defendant.