Cheung Kung Wing and Others v. Attorney General

HCA001541/1974

Coram: Trainor, J.

Date of Judgment: 12 January 1979

-----------------

JUDGMENT

-----------------

1. This case concerns the registration of motor vehicles as New Territories taxis, and later licensing such as complied with the appropriate Road Traffic Regulations as Public Light Buses.

2. In May of 1961, one, Lee On, now deceased, but then a partner in the plaintiff firm, wrote to the Commissioner of Police requesting that he be allowed to register and license 48 9-seater New Territories taxis, an application in which, I understand, he was supported by Earl Mounbatten of Burma. In his application he indicated that owing to limited financial resources he intended to acquire initially 24 9-seater second hand vehicles and have them overhauled "so that they will like new (sic)" and meet the requirements of the Traffic Office. After certain correspondence with Mr. Lee and inter departmental exchanges the Commissioner of Police wrote to Mr. Lee on the 30th June, 1961 as follows:

3. On the 13th January, 1962 Mr. Lee wrote to the Commissioner of Police:

and on 10th February, 1962 the Commissioner wrote to Mr. Lee in terms identical to those of his letter of the 30th June, except that he referred to 36 9-seater taxis and 12 4-seaters instead of 48 9-seater and informed him that the number of taxis registered was 797 instead of 286.

4. On the 3rd November, 1964 the manager of the plaintiffs wrote to the Commissioner:

"We take pleasure to request (sic) that we have fulfilled our original application, 48 N.T. taxis of our company are operating at the present",

and expressed the hope

"that 12 9-seater licences will be issued for increase to our company in order that we can develop our business and in aid of public transport."

It is of interest, by reason of a matter with which I shall say later, to note that there is nothing in that letter to suggest that the effect of the letters of the 30th June, 1961 and the 10th February, 1962 was cumulative, i.e. concerned 96 vehicles.

5. On the 5th December, 1964 Mr. Lee, in what appears to be a stereotyped form made an application for another 24 New Territories Taxi Licences. Paragraph (g) of the form: "Number of taxis to be provided if application is accepted", contains an addendum which will have some bearing when I come to deal with the taxis that were subsequently licensed as a result of that letter: "Note: a minimum 6 taxis must be provided". From a letter from the plaintiffs dated the 18th January, 1965 it would appear that there had been a letter from the Commissioner, though the letter was not made available to me, to the effect that the plaintiffs had not adequate parking space for "80% of the 24 vehicles" and asking that their application be reduced to 12 9-seater and 7 5-seater vehicles. The original application was later amended by substituting 19 9-seater vehicles for the original 24.

6. On the 3rd June, 1965 the Commissioner wrote to the plaintiffs a letter similar to the letters of the 30th June, 1961 and the 10th February, 1962. The differences to be noted are the paragraph which reads:

"By virtue of the power vested in me under Regulation 5 of the Road Traffic (Taxis, Public Omnibuses and Public Cars) Regulations, 1964, authority is given for you to register and license nineteen 9-seater New Territories Taxis, subject to final inspection of the vehicles when available for registration and licensing."

and attention is drawn to regulation 6 of the Road Traffic (Taxis, Public Omnibuses and Public Cars) Regulations, 1964 instead of regulation 5 of the Road Traffic (Taxis and Hire Cars) Regulations, 1960 in paragraph 5 of the earlier letter.

7. On the 17th April, 1967 one C.R.M. Lawrence signed a letter on behalf of the Commissioner which was identical in terms to the letter of the 3rd June, 1965 save that the number of vehicles is 31 9-seater and 11 5-seater vehicles. There is a concluding paragraph which reads:

"This letter supersedes my letters to you of even reference dated 10th February, 1962 and 3rd June, 1965."

8. As I understand Counsel, the plaintiffs were unaware of the existence of that letter until December, 1972 when it was referred to in a letter dated the 1st December, 1972 sent by the Commissioner to the plaintiffs' solicitors.

9. What I have said up to the present in this lengthy preamble to my judgment proper was made necessary by the plaintiffs' claims. The plaintiffs seek many reliefs in their Statement of Claim and they are based on the letters of the 30th June, 1961, the 10th February, 1962, the 3rd June, 1965 and the 17th April, 1967. I shall deal more specifically with the plaintiffs' claims later but for the present part of this judgment suffice it to say that the effect of the claims is that under the first letter the plaintiffs were entitled to register and license as taxis 48 vehicles; under the second another 48; under the third another 19; and under the fourth a further 42. In all, the plaintiffs' claim that they were entitled to register and license 157 vehicles.

10. I do not intend to deal in any detail with the evidence of the cumulative effect of those four letters. There were the letters referred to above, other letters, to copies of which I was referred and evidence given on behalf of the plaintiffs that established beyond the thiniest scintilla of doubt that the first and second letters were not cumulative in effect, and never at any moment up to and throughout the trial of this action did the plaintiffs believe them to be such. One obvious point in support of my view is: why would the plaintiffs write to the Commissioner as they did on the 3rd November, 1964: ".... we have fulfilled our original application, 48 taxis of our company are operating ...." and ask for permission for a further 12 9-seater taxis, increase that to 24 mixed types, and then change that to 19, the 19 for which permission was given on the 3rd June, 1965, if at the time the plaintiffs were still entitled to forty-eight of which they had not availed.

11. I am satisfied beyond doubt that the letter of the 10th January, 1962 was in substitution for the letter of the 3rd June, 1961 and at all times the plaintiffs understood that and acted on that basis.

12. As to the claim based on the letter of the 17th April, 1967, alleged to grant something which the plaintiffs never sought, which letter the plaintiffs say they never received, I consider it to be utterly without merit. To add insult to injury the plaintiffs would argue that they are entitled to base a claim on that part of the letter which they allege confers a benefit on them but ignore the other part which says the letter supersedes its predecessors.

13. I would not have dwelt to this length on these matters were it not for the fact that the Statement of Claim, though amended and re-amended has been left unaltered in so far as claims have been based on the first and fourth letters. Indeed, those claims were maintained and argued before me, even though the plaintiffs' witness conceded in answer to a question of mine that he did not consider he had a claim on the 1st or 4th letter. Such claims should never have been brought. In my opinion they were at the best impertinent and at the worst dishonest. They are dismissed.

14. The Commissioner of Police has always been the statutory authority for the registration and licensing of motor vehicles and it might be useful at this stage to examine the law pertaining to the registration of vehicles and the licensing of them; in particular licensing them as taxis at the times relevant to this case.

15. By virtue of section 4 of the Road Traffic Ordinance the Governor in Council was empowered by regulation to prescribe or provide for the registration and licensing of motor vehicles within the classes stipulated in sub-section (2) of section 2; and included in that sub-section were taxis. On the 1st October, 1956 it was enacted in regulation 3 of the Road Traffic (Registration and Licensing of Vehicles) Regulations that "A vehicle licence shall not be issued in respect of a motor vehicle until it has been registered". Regulation 4(1) provided that any person who wished to have registered a motor vehicle, "of which he is the owner", should deliver to the Commissioner an application, in such form as might be proscribed by the Commissioner, signed by the applicant and pay a fee of $10. Regulation 6 provided:

It might be here noted that the regulation states that the Commissioner "shall" register the motor vehicle if he is satisfied with the particulars contained in the application. So far as I am aware, and I understand Counsel to be of the same opinion, no form of application has ever been prescribed in any regulation, but I understand from Counsel for the defendant and I accept that there is maintained by the Commissioner a register of motor vehicles. That I assume is maintained in accordance with regulation 8 which states that the Commissioner shall maintain such a register containing the several particulars specified in the first schedule to the Regulation: (inter alia) the full name of the owner of the vehicle; the date of registration; the registration mark; the name of the maker of the vehicle; the country of origin; the engine number; the cylinder capacity; the unladen weight; the type of body; the seating capacity; and the classification of the vehicle.

16. It is obvious, therefore, that while the Commissioner is obliged to register a vehicle if he is satisfied with the particulars set out in an application containing particulars to enable him to compile the Register he has no power to register, or commit himself to register a non-existent vehicle.

17. That was the position on the 10th February, 1962 with regard to the registration of a motor vehicle. But before such a vehicle may lawfully be used on the road it must be licensed; and licensing is a very different thing to registration though on many occasions throughout this case, both in documents and at the hearing the words have been used as though they were synonymous. Before it may be used as a taxi a taxi licence must be obtained.

18. Regulation 15 of the Road Traffic (Registration and Licensing of Vehicles) Regulations reads:

19. It will be noted from that that there is imposed on the Commissioner a statutory obligation to cancel the registration.

20. There is another regulation of the same Regulations which I must quote. Regulation 18 provides:

(4) If the registration and registration mark have been held in abeyance for a period of twelve months and no application has been made to the Commissioner to have such registration and registration mark assigned to a motor vehicle, the Commissioner may cancel such registration without notice to the person named in the registration book and at any time thereafter may assign such registration mark to any other motor vehicle."

21. The position then is that when a motor vehicle is "scrapped" the registered owner is obliged to notify the Commissioner that that has happened and at the same time send the registration book and any vehicle licence issued in respect of the use of the vehicle to him. On receipt of the registration book the Commissioner is obliged to cancel the registration and he may at any time thereafter assign the registration mark. But the registration of the vehicle ceases to exist, as does the licence, and the registration mark is at the disposal of the Commissioner. However, the registered owner may apply to have the registration of a motor vehicle transferred to another motor vehicle of which he is the owner, or held in abeyance for twelve months while he acquires another. If the registered owner does so apply the Commissioner may still cancel the registration of the motor vehicle and assign the registration mark to another motor vehicle of which the applicant is the owner. Alternatively he may hold the registration and registration mark in abeyance until such time, not exceeding twelve months, as the registered owner applies for the registration and registration mark to be assigned to another motor vehicle. But if no application for transfer or assignment is made within twelve months then the Commissioner may cancel such registration without notice. In a nutshell, under regulation 15 the Commissioner must cancel, and under regulation 18 he may cancel the registration.

22. It is against the background of those Regulations that the case must be examined.

23. The plaintiffs ultimately registered and licensed the 36 9-seater taxis and the 12 4-seater taxis referred to in the letter of the 10th February, 1962, and six of the 19 9-seater taxis referred to in the letter of the 3rd June, 1965.

24. The registrations of thirteen of the original 48 taxis were cancelled. The plaintiffs allege that the Commissioner on divers dates between 1967 and 1969 "refused to renew or cancelled the licences and registration" of the thirteen taxis, and allege that he purported to act under regulations 6 and 7 of the Road Traffic (Taxis, Public Omnibuses and Public Cars) Regulations and his so doing was wrongful and without authority. They plead that no part of the Traffic Ordinance empowers the Commissioner to cancel or refuse to renew the registration and license of any of the thirteen vehicles. May I comment here that the renewal of registration is something unknown to the motor vehicle law; registration of a motor vehicle continues until cancellation. It may of course be re-registered after cancellation on a new application being made.

25. The plaintiffs further allege that the Commissioner refused to register and license the remaining thirteen vehicles referred to in the letter of the 3rd June, 1965 despite repeated request in 1967, 1968 and 1969 and thereby acted wrongfully and without authority.

26. In 1969 the owners of licensed New Territories taxis were entitled to have them licensed as public light buses if they complied with the Regulations governing the change. The plaintiffs claim that by reason of the Commissioner's "action" or "inaction" they were wrongfully deprived of their right to have public light bus licences in respect of all the New Territories taxis of which they claimed they were deprived.

27. The plaintiffs sought relief by way of various declarations and damages.

28. I have already dealt with the claim based on the first and fourth letters and I shall now deal with the claim with regard to the thirteen cancelled registrations and the thirteen, the balance of the nineteen, of the third letter.

29. Firstly I shall deal with the thirteen vehicles registrations of which were cancelled. Those vehicles were registered as AB 43955 AB 4409, AB 4402, AB 4405, AB 4407, AB 4425, AB 4427, AB 4434, AB 4437, AB 4396, AB 4398, AB 4419 and AB 4397. I give them in that scattered order as that is how they appear in the Statement of Claim.

30. The direct evidence of Mr. Cheung Kung-wing, a partner in the plaintiff firm, and the only witness called by the plaintiffs with regard to these vehicles, was brief indeed; certain documentary evidence concerning them was produced.

31. Mr. Cheung said he signed four forms, copies of which were produced in a bundle of documents and referred to as B16, B17, B18 and B19. They related to taxis AB 4395, AB 4419, AB 4409 and AB 4396 respectively. The forms were all dated the 18th November, 1966 and the witness said he posted them with covering letters to the Commissioner. The forms were roneoed multi-purpose forms and were addressed to the Commissioner. They were headed "Motor Vehicle Registration No. ...." and continued "With reference to your enquiry dated the 7th November, 1966, I wish to inform you that the above vehicle:- (tick (√) off as appropriate)". There then followed a series of possible happenings to the vehicle with a box for the insertion of the tick, e.g. "(1) Is still in my possession but is currently off the road" or "Was scrapped by me on ....". The second paragraph reads:

32. As there was no appropriate provision in B16 for the case of AB 4395 the witness said he typed or had typed in "The above vehicle will be scrapped and the registration should be cancelled" and he placed a tick in front of what was typed. In B17 the box before "(ii) was scrapped by me ...." was ticked and the date, "16th August, 1966" was inserted. On B16 there was the endorsement: "Registration mark AB 4395 cancelled on Nov. 22 1966" and there was a similar endorsement on B17 with respect to AB 4419. B18 and B19 lacked provision for the case of AB 4409 or AB 4396 and there was typed in each form "The above vehicle will be changed as a private car and its N.T. Taxi Licence should be cancelled". The two forms had endorsements similar to those on B16 and B17. In fact, these two vehicles were subsequently re-registered and licensed as private cars.

33. Mr. Cheung said that in a covering letter with B16 he said the vehicle was too old and would be scrapped and applied to have the licence preserved for a new vehicle. Later, and in cross-examination he said that similar letters were sent with regard to all the thirteen vehicles. (I should perhaps point out that the interpreter informed me that the Cantonese word the witness used could mean "register" or "license" though it is of note that in the forms exhibited he used the words "licence" and "registrations").

34. That was the only direct evidence given by the witness concerning the thirteen licences. He gave no direct evidence of having approached the Commissioner either formally or informally with regard to registering or licensing replacements.

35. But his evidence later, when dealing with the plaintiffs' claim in respect of the letter of the 3rd June, 1965, the fourth letter, was I considered enlightening. He said his firm took up only six of the nineteen licences referred to in that letter because "in 1968 when we applied they did not allow us to have new vehicles". He said he was told by an official that under new Regulations no new licences would be granted. Later he said, "I had three licences issued in 1966, then in May, 1967 because of general chaos because of riots I did not apply for licences so it was as late as 1968 when I again applied for the use of licences". He was again asked why he did not take up all in 1966 and he said:

"Because at that time I had 48 licences. I had old vehicles disposed of and applied the old licences to new ones ... I had 48 old vehicles. I disposed of some and replaced them with new. I had old cancelled licences. I cancelled over period about 10 odd and replaced them with as many keeping fleet at 48".

Later he said:

"Riots were two years later (i.e. after 3rd June, 1965). I took up 6 and I had 48. Some were old and I replaced them - 10 odd. That is why I did not go for new licences. All along, gradually, I had been changing the old vehicles to new ones."

In answer to a question from me he said he had 54 vehicles on the road. I then asked was the failure to avail of the 13 because he was satisfied with the 54 and he replied,

"The addition of new vehicles to old was added. We were replacing old with new. We did not wish to add 13 more at one time."

He went on to give a number of reasons why he did not wish to add another 13 to the fleet: Trouble over drivers; there had been runs on the banks; the expansion of the company was intended to be gradual; and, finally, he had the authorisations which might be used at any time.

36. His evidence would establish three things:

37. It is of interest that, although the witness said his firm kept copies of the letters sent with the four forms they were not forthcoming, and the defendant has no record of having received the originals. The witness explained the absence of the copies in different ways: First he said they were lost because of the riots in 1967, then he said that although his firm was not affected by the riots it was to the extent that some documents were lost. He then changed that to saying that some documents could not be found as the fokis who knew where they were had left the firm, and others were lost when the firm changed its address. It is also of interest that on the 1st September, 1967 the plaintiffs wrote to the Commissioner saying that the New Territories "licences" with regard to, inter alia, the four taxis concerned had been cancelled.

38. I am satisfied that the witness was lying when he said there was an accompanying letter with the forms.

39. I am satisfied that regulation 15 of the Regulations pertaining to registration applied to the first two vehicles and the Commissioner acting thereon rightly cancelled the registration. As to the other two, by asking to have their taxi licences cancelled the plaintiffs thereby precluded them from being used on the road and when they were re-registered as private care the plaintiffs abandoned the registration of the two vehicles in the category of taxis and no right subsisted thereafter.

40. As I said earlier the only direct evidence given by the plaintiffs witness related to the four vehicles with which I have dealt. There were produced, however, certain documents or letters and the first with which I shall deal was a letter dated the 4th November, 1966. In that letter the plaintiffs told the Commissioner that vehicle AB 4398 was unsuitable as a New Territories taxi and that they had decided to change its use to that of a private car. The letter continued "As to the N.T. Taxi Licence AB 4398 we shall purchase another vehicle for replacement." The registration of that vehicle as a taxi was cancelled on the 5th November and it was re-registered the same day as a private car. AB 4398 is in exactly the same case as the vehicles referred to in Exhibits B18 and B19 save that there is a reference to the purchase of a replacement. As I said earlier a motor vehicle cannot be licensed until it is registered and there is no provision in the legislation for transferring a taxi licence, though there may be a refund of the unexpired fee. By that letter the plaintiffs did no more than inform the Commissioner of their intention to acquire a motor vehicle for replacement of that which had had its registration cancelled. The position then was that had they acquired one they could have applied for it to be registered as provided in the Regulations governing registration and then apply for a taxi licence. No evidence was forthcoming that any such thing was done and the plaintiffs have established no right on which to base a claim in respect to that vehicle.

41. The licence of taxi AB 4407 expired on the 31st March, 1967. On the 27th June, 1969 the Commissioner wrote to the plaintiffs informing them that as the licence for the vehicle had expired for more than two years the registration would be cancelled in accordance with regulation 16 of the Road Traffic (Registration and Licensing of Vehicles) Regulations unless the vehicle was licensed within fifteen days. No action was taken by the plaintiffs within the prescribed time and the registration was cancelled, and rightly so. No right in respect of it remained thereafter.

42. Of the remaining seven vehicles two of them, AB 4434 and AB4437 figure in correspondence as early as 19th June, 1964 when the plaintiffs sought permission to change the licences of them and four others (there is no claim in respect of the others) from 4 or 5 seaters into 9-seaters. In another letter dated the 11th August, 1964 the plaintiffs withdrew the application saying they intended to replace them with new vehicles. That this was done and the new vehicles registered with the old registration mark is clear from the plaintiffs' letter dated the 3rd November, 1964 to the effect that they were operating forty-eight taxis; and it was common case that AB 4434 and AB 4437 were licensed until the 31st July, 1967. Obviously, the Commissioner had dealt with the matter under regulation 18, retained the registration marks and assigned them to other vehicles belonging to the plaintiffs. What happened after that is a mystery. On the 31st July, 1967 the licence of AB 4434 expired and the registration was cancelled on the same day. The licence of AB 4437 also expired on that day and its registration was cancelled on the 25th March, 1968.

43. Of the remaining vehicles, AB 4397 was licensed until the 31st August, 1966, AB 4425 until the 31st May, 1967 and AB 4427 until the 28th February, 1967. Their registrations were cancelled on the 31st July, 1967 and 3rd June, 1967 and the 31st July, 1967 respectively. The witness for the defendant was unable to say why. There were however three letters from the plaintiffs to the Commissioner which I consider to be of value. I was told by the witness for the plaintiffs that the first letter, dated the 1st September, 1967, was written by him as a result of an interview he had with a Mr. Cheung of the Transport Department at which interview Mr. Cheung asked the witness to let him know how many taxis he had in operation. The letter commences "We spoke. The following N.T. Taxis are in operation". There is then set out a list of 43 vehicle numbers, three of which are the subject of the claim: AB 4402, AB 4405 and AB 4437. The second paragraph is headed: "The following N.T. Taxi licences are cancelled." and there follows a list of eleven vehicle numbers, the first ten of which are the remaining ten the subject of the claim. The total number of vehicles, 54, is of some interest as the number of vehicles registered after the first letter was 48 and there were 6 registered after the letter from the Commissioner dated the 3rd June, 1965. When the plaintiffs' witness was being cross-examined about this letter he was asked:

44. That letter of the 1st September I consider to be of considerable importance when taken in conjunction with the evidence of the witness. Taken together, there was to me a clear admission by the witness that the plaintiffs had applied for the cancellation of the registration of the ten vehicles, though there was a feeble effort in other parts of his evidence to suggest that in each case he asked to have the registration transferred to other vehicles. I am satisfied that there were some cases in which no suggestion of a transfer of registration was made e.g. in respect of the vehicles referred to in Exhibits 16, 17, 18 and 19 but in no case was an application made to have another vehicle registered in place of a vehicle the registration of which was cancelled. The onus of establishing otherwise was on the plaintiffs and that they failed to do.

45. So far as those ten were concerned (they included the seven with which I have already dealt). I am satisfied that their registrations were properly cancelled by the Commissioner and, moreover, as I hope to show later, the plaintiffs fully accepted that as being the correct position.

46. I find that the plaintiffs are not entitled to any relief in respect of them.

47. The second letter from the plaintiffs to the Commissioner followed shortly after the first. It was dated the 30th September, 1967. In it the plaintiffs informed the Commissioner that they had scrapped AB 4402 (one of the vehicles stated in the letter of the 1st September to be still in operation). In it the writer said "The Registration Book is enclosed for cancellation. As to the N.T. Taxi Licence No. AB 4402, we shall purchase another vehicle for replacement". The cancellation of the registration of this vehicle was effected on the 28th May, 1968.

48. The last sentence cannot be interpreted as a request to the Commissioner to transfer the registration and therefore regulation 18 would apply. The Commissioner was bound to cancel the registration. But there was produced to me a departmental memorandum with respect to this vehicle. It reads:

The date is the 13th October, 1967. I am satisfied that even if the expression of an intention to purchase another vehicle for replacement of AB 4402 could be interpreted as an application to have the registration of it transferred there is ample evidence in that memorandum and other correspondence to which I shall refer to show that the plaintiffs abandoned their intention to have the registration transferred. But even if I am wrong in that the transfer of registration to another vehicle did not entitle them as of right to have that vehicle licensed as a taxi. They would have had no greater right than they would have had on a first registration.

49. There remains then only AB 4405 and AB 4437 to be dealt with.

50. The third letter, dated the 14th November, 1969, sent to the Commissioner by the plaintiffs was signed by Mr. Cheung, the plaintiffs' witness. In it he bitterly attacked the Commissioner's department for licensing as public light buses former New Territories taxis which the original owners, including the plaintiffs, had sold to their drivers. One broad base of the complaint was that the drivers had failed to pay for what they had purchased, and the writer asked the Commissioner to consider the matter and issue the new licences to the original licensees so as to enable them to make the new vehicle owners pay their debts. I think the last two paragraphs of the letter throw a considerable light on how the plaintiffs felt about the thirteen vehicles with which this part of the judgment is concerned. The first of those paragraphs reads:

"I was elected the Chairman of the N.T. Taxi Operators' Association. When the Government was going to enforce the new regulations the members of my association objected to the rise of the annual licence fee of $3,000. You interviewed me and asked me to assist you in calming their anger. You also promised to benefit our trade in the future. Without my co-operation the new regulations cannot be thus successfully enforced. However, your promise has not been redeemed. My company is driven to the brink of bankruptcy and I am blamed by my colleagues because you has (sic) cancelled the ownership of the licences. If you refuse to make remedial arrangements, I will hold a press conference to disclose the whole story of my case to the public and even appeal to Britain."

There is nothing in that paragraph to suggest that the writer has had the registration of thirteen taxis unlawfully cancelled, or lawfully cancelled with a right to transfer the registrations and licences which was unlawfully withheld. It is not suggested that by reason of the Commissioner's action or in-action the plaintiffs were prevented from registering and licensing thirteen public light buses. The complaint was "cancelling the ownership of the licences" which may be interpreted to mean licensing the vehicles which the writer and members of his association had sold to the drivers in favour of the drivers. In the final paragraph he says:

"Sometime ago due to the bad business of my company I returned the thirteen licences ... (he then set out twelve of the thirteen but it was agreed by counsel that the whole thirteen should have been included - AB 4402 was the missing number) respectively to your department. It was mentioned in my letters I retained my right to purchase new vehicles to replace the old ones. No other companies have done this. In view of the need of the remedial arrangements for my case and in order to prevent other companies from following suit will you consider to issue thirteen public light bus licences to my company as a remedial measure to settle my case so as to enable my company to purchase new vehicles and continue its operation? I should be grateful if you will give me a favourable reply."

51. In that paragraph he says that "in his letters he retained his right to purchase new vehicles to replace the old ones". He does not say what letters, and he certainly did not send letters with regard to the first four vehicles with which I dealt. As to the others whatever right he had, if any, to have their registrations transferred to other vehicles he certainly had no right to have the licences transferred. However, nowhere does he suggest or imply that he tried to enforce his right and that was denied him. All that is sought is "remedial arrangements to prevent other companies following suit".

52. I should mention that on the 30th October, 1969 the plaintiffs had written to the acting Colonial Secretary in the same vein as in his letter to the Commissioner i.e. complaining that public light buses were being "licensed" in the names of the new owners to the exclusion of the original owners. In the letter the plaintiffs said:

"Prior to the enforcement of the new regulations we owned 41 licences and had parking and maintenance facilities ...."

and finished

"It is on the face of this that we are petitioning your Honour with the request that the Transport Department be asked to take remedial measures by issuing to our company a number of public light bus licences so as to enable us to purchase new vehicles for continuing our service to the public."

There is no allegation there that the Commissioner had unlawfully cancelled thirteen licences or had unlawfully refused to licence thirteen vehicles. There is no claim as of right to be discerned in that letter.

53. The witness for the defendant in his evidence said that he had nothing available to him to show how the registration of certain taxis including AB 4437 came to be cancelled beyond the expiry of their licences and the fact that it was cancelled on the 25th March, 1968; but there is the letter of the 1st September, 1967 from the plaintiffs after the conversation with the Commissioner's representative telling which vehicles were in operation and which licences were cancelled. The licence of AB 4437 had already expired on the 31st July, 1967. It was not therefore a case of the licence being cancelled; it had expired and in my opinion the letter of the 1st September, 1967 indicates clearly that the plaintiffs had no intention to seek to have it re-licensed.

54. There is one remaining vehicle to which I have not referred in detail: AB 4405.

55. On the 16th May, 1968 the plaintiffs wrote to the Commissioner to say that that vehicle was scrapped by reason of its condition adding "The Registration Book is enclosed herewith for cancellation." The letter continued:

"As to the licence No. AB 4405, we purchased a light bus from the Wallace Harpers & Co., Ltd., we hope that the new vehicle will be permitted for replacement."

On the same date the Commissioner wrote to the plaintiffs

"I wish to inform you that with immediate effect the replacement of New Territories taxis, the licences of which have been expired for a period of three months or more will not in future be approved."

It was conceded that the Commissioner had no power arbitrarily to refuse to license New Territories taxis on the ground he stated, but neither had he power automatically to license an unknown vehicle or unregistered vehicle.

56. On the 16th October, 1968 the Commissioner wrote to the plaintiffs:

57. When the plaintiffs wrote on the 16th May to the Commissioner saying that they had scrapped the vehicle AB 4405 and enclosed the registration book the position was governed by regulation 15, and the Commissioner had no alternative under sub-regulation (2): "Upon receipt of the registration book the Commissioner shall cancel the registration ...."; but to cancel the registration. That was done on the 17th May the day after the date of the letter. It was not a case to which regulation 18 applied. The plaintiffs scrapped the existing vehicle and asked to have the registration cancelled. The second paragraph of the letter is not a request to transfer the registration as visualised in regulation 18 but really pertains to licensing. The prescribed fee did not accompany the letter, nor was there a request to transfer the registration to an identifiable vehicle. The letter suggests that there was a vehicle in existence therefore there was no necessity to hold the registration in abeyance; and on the other hand the Commissioner had no power automatically to authorise the transfer of the registration; he can only do so when he is satisfied with the particulars of the new vehicle. This was not a case of seeking a transfer of a registration. The letter merely expressed the hope that the vehicle would, at some time, be permitted to replace AB 4405.

58. I said earlier a motor vehicle may not be licensed for any purpose until it is registered, and under regulation 5 of the Road Traffic (Taxis, Public Omnibuses & Public Cars) Regulations the Commissioner "shall not issue a vehicle licence in respect of a motor vehicle as a taxi" unless the Commissioner is satisfied that the conditions set out in the regulation are complied with. In such circumstances the Commissioner would have acted perfectly correctly and in compliance with his duty had he replied to the effect that he had cancelled the registration, and no more. He had no power to go farther and say he would or would not register any vehicle; he had no authority arbitrarily to say he would not license as a taxi any registered vehicle. But he did go farther; what he said in effect might be interpreted as: I am not going to license any motor vehicle for you as a taxi to replace a vehicle previously licensed as a taxi. If a proper application for registration of a motor vehicle had been made to the Commissioner and the Commissioner was satisfied with the particulars in it he must, subject to the limitation of regulation 17 of the Road Traffic (Registration and Licensing of Vehicles) Regulations, register it. At the relevant time if he refused an appeal lay to the Governor in Council, as the plaintiffs, according to their witness, knew. The plaintiffs in my opinion, if they really wished to have another taxi should have formally applied in the prescribed way to have registered the vehicle they said they had acquired. If the Commissioner refused to register it then they should have appealed to the Governor-in-Council. Had the Commissioner registered the vehicle on such an application, or as a result of an appeal to the Governor in Council, then an application could have been made to license it as a taxi. If such an application complied with the requirements of regulation 5 of the Road Traffic (Taxis, Public Omnibuses and Public Cars) Regulations the Commissioner, in my opinion, was bound to license it as a taxi. Even if the letter of the 16th of May could be interpreted as an application to transfer the registration of AB 4405 what I have just said would apply.

59. If the vehicle was registered and the Commissioner refused to license it then the plaintiffs had a remedy in mandamus. But the plaintiffs did nothing.

60. If one considers the position to be as indicated by the evidence of the plaintiffs and in particular by the letters to the Commissioner and the Chief Secretary then even on the interpretation most favourable to the plaintiffs they accepted without any question, let alone action, the legal position to be as stated by the Commissioner. It was not that the plaintiffs did nothing as a result of ignorance of the law; the plaintiffs knew the law and acquiesced in the action of the Commissioner.

61. The position with regard to AB 4405 was that the plaintiffs permitted the licence to expire on the 31st December, 1967 and scrapped the vehicle. They remained without a taxi and then wrote the letter they did on the 16th May, 1968. At the time they did so they were, as they alleged, entitled by reason of the letter of the 3rd June, 1965 to register thirteen vehicles and license them as taxis. They were aware of the stated policy of the Commissioner with regard to "replacements", and when they wrote they expressed "the hope" that the vehicle they said they had purchased from Harpers would be accepted as "a replacement". If their hope was not fulfilled they were satisfied that they could fall back on the other thirteen if they ever wished to do so. It was, to use a modernism, "a try on", just as their claim in this case in respect of the forty-eight taxis of the first letter of the 30th June, 1961 was a try on. When their request was not acceded to they accepted and acquiesced in the position. After all they could have applied to have one of the outstanding thirteen registered and licensed had they wished so to do but they never did make such an application as I hope to demonstrate later.

62. In my opinion there clearly was an acquiescence on the part of the plaintiffs in the policy the Commissioner said he intended to carry out. I am satisfied that by implication the plaintiffs acknowledged such to be the position when they wrote to the Chief Secretary on the 30th October, 1969 and when they wrote to the Commissioner on the 14th November, 1969.

63. In none of the letters was there any allegation that they had been wrongfully deprived of the right to register vehicles and license them as taxis. The most they alleged was that they retained their right to purchase new vehicles to replace the old. In fact the letters were ad misericordiam and sought ex gratia permission to obtain Public Light Bus Licences.

64. I am satisfied that immediately prior to the time when public light buses were introduced the plaintiffs, who had already sold some of their taxis, had no intention of increasing their taxi fleet. They had scrapped vehicles and knew perfectly well that their registrations would be cancelled. In some cases they did say they wished to have "the licences" preserved for other vehicles, something for which no provision exists in legislation, but even if they did intend "license" to mean "registration" they had no intention then to acquire vehicles to replace them nor did they subsequently consider acquiring vehicles for that purpose.

65. Having abandoned their intention to register and license all the thirteen vehicles, including AB 4405, as I am satisfied they did, the Commissioner was prevented from taking it and the others into consideration in reckoning the number of Public Light Bus licences he would issue, The plaintiffs had no rights to license Public Light Buses by reason of the thirteen vehicles with which I have dealt. I dismiss the plaintiffs' claim with regard to them.

66. I now pass to deal with the thirteen licences the subject matter of the letter 3rd of the June, 1965 which I have already quoted. That letter was it will remembered, the result of the application form which noted: "a minimum of 6 taxis must be provided". Subsequent to the receipt of that letter the plaintiffs formally applied and had six such taxis registered and licensed. It is their contention that despite applications made by them the Commissioner refused to register and license the remaining 13 hence their claim.

67. It was argued, inter alia, by Mr. Jackson-Lipkin that that letter created a contractual relationship between the Commissioner and the plaintiffs and as no limitation was put as to when the registration and licensing might be effected the addressee might apply at any time and the Commissioner was bound to comply.

68. It might be helpful to consider regulation 5 to which the Commissioner referred in his letter as conferring powers on him. It reads:

"The (Commissioner) shall not issue a vehicle licence in respect of a motor vehicle as a taxi, ..... in accordance with the provisions of the Road Traffic (Registration and Licensing of Vehicles) Regulations unless he is satisfied that -

69. It will be seen that regulation 5 of the Regulations to which the Commissioner referred has nothing whatever to do with the registration of motor vehicles except by implication: a motor vehicle may not be licensed unless it is registered, it merely directs that the Commissioner shall not license a vehicle as a taxi unless he is satisfied that the requirements of the regulation as to the construction of the vehicle and the other requirements have been complied with. But it must be registered.

70. There was not produced to me a copy of a form referred to in regulation 4 of the Road Traffic (Registration and Licensing of Motor Vehicles) Regulations, (the regulation which provides for an application for registration) but I think I may safely assume that such a form makes provision for the particulars in the register of motor vehicles which the Commissioner has to maintain as provided for in regulation 8 of those Regulations and which are set out in the first Schedule; those particulars include: the country of origin of the vehicle; the engine number; the cylinder capacity; the weight; and many other details. It is stating the obvious, therefore, to say that before a vehicle may be registered and then licensed it must be in existence and the applicant for registration must be the owner.

71. At the time of the commencement of the correspondence between the plaintiffs and the Commissioner there had grown up a practice in the Commissioner's office that was very fair and practical. It was a practice whereby an intending taxi operator applied to the Commissioner for what the Commissioner referred to in a letter to the Colonial Secretary as "approval" to register and license taxis. This was done before the applicant had acquired the vehicles he intended to use. The practicality of the procedure is obvious: the applicant would not yet have incurred the cost of the vehicles, licences for which as taxis might subsequently be refused if it transpired that the applicant was unable to comply with certain of the regulations, e.g. the facilities for proper garaging and maintenance of the vehicles, or satisfy the Commissioner that the applicant was a person of substance and good repute. If, however, the Commissioner on the receipt of an application was satisfied that, apart from the vehicles, everything else was in order he would issue what was referred to as a Letter of Authorisation. When it was received the applicant knew that if he applied to have registered and licensed, or licensed if the vehicle was already registered, a vehicle that was suitable he would get a licence to use the vehicle as, in this case, a New Territories Taxi.

72. That the position was understood and appreciated by the plaintiffs is reflected in a letter dated the 23rd May, 1961 and signed by a Mr. Lee On then a partner in the plaintiff firm:

"You will no doubt appreciate that my financial capital is very limited, therefore it is my intention to purchase (should the application be approved) 24 second hand 1960/61 Dual Purpose Vehicles (9 Seaters). I intend to have these 24 Vehicles overhauled so that they will be like new, and will have no difficulty in meeting the requirements of the Traffic Office. Furthermore I already have in mind a suitable site in the New Territories for the purpose of garaging and servicing of my fleet of vans (sic)."

That letter, if I may say so, also reflects a considerable knowledge of the requirements of the Road Traffic (Taxis, Public Omnibuses and Public Cars) Regulations.

73. When, therefore, the Commissioner wrote the letter of the 13th June, 1965 he had no power to give an open authority to the plaintiffs to license vehicles of which he was unaware. That he was aware of the position and intended to, and did convey that to the applicant is clear from the regulation he cited, regulation 5, and of which, it must be presumed, the applicant was aware. What the Commissioner was doing by that letter was indicating to the recipient that he, the recipient, was a suitable person to license motor vehicles as taxis, and should he make application for such licences for specific vehicles and the requirements of regulation 5 were met he would issue licences for them. In so far as he used the words "register and license" clearly he was referring to licensing only as the reference to regulation 5 indicates. If the Letter of Authorisation could be interpreted as saying that if the recipient applies for the registration of a motor vehicle and the particulars in the applications comply with the requirements for registration the Commissioner will register them, the Letter of Authorisation was merely stating the obvious. Under regulation 6 of the Road Traffic (Registration and Licensing of Vehicles) Regulations a person has a right (subject to regulation 17) to have a vehicle registered when he presents to the Commissioner what McMullin, J. referred to at page 6 in the unreported decision of the Court of Appeal in The Attorney General v. Wong Kwong-shing originally Wong Kwong-shing v. Attorney General 1977 H.K.L.R. as "a clean application". As the learned judge said at the same page on filing such an application the applicant acquired an inchoate right to be registered which became a vested right when the application was examined and found to be satisfactory. But, as I said earlier, registration and licensing require the existence of a vehicle, the ownership of which is vested in the applicant.

74. Subsequent to the receipt of the letter the plaintiffs filed the proper applications in respect of the minimum six vehicles, had them inspected and obtained taxi licences for them. They went through all the prescribed procedure, lodged the appropriate forms and obtained the licences. At no time thereafter did they own vehicles for which licences might be obtained and consequently no applications could be made.

75. Of the six vehicles licensed Mr. Chung King Wong of the plaintiff firm told me three were licensed in 1966. He told me:

"I had 48 old vehicles. I disposed of some and replaced them with new. I had old cancelled. I cancelled over period about 10 odd and replaced them with as many, keeping the fleet at 48".

He then went on to say:

"We did not utilise the 13 because in 1967 there were riots and in 1968 when I applied for issue of licences I was refused".

Later he said:

"The riots were approximately two years later (i.e. in 1967) I took up six and I had 48. Some were old and I replaced - 10 odd. That is why I did not go for new licences. All along, gradually, I had been changing the old vehicles to new ones .... We did not insist to add 13 more at one time."

He later said that he did not wish to add thirteen more for many reasons; difficulty with drivers; the situation at the time, e.g. a run on the banks; the intention to expand the firm only gradually; and finally that the firm had the authorisation from the Government and it could be used at any time.

76. The witness said he approached the Commissioner's department twenty - thirty times for licences in 1968 but was refused. He said that from then until the issue of the writ he or his solicitors applied to avail of what was offered in the Letter of Authorisation but was refused.

77. In cross examination the witness conceded that all applications with regard to the outstanding thirteen licences were oral. Why that should be so it is difficult to understand when proper applications had been filed with respect to the other six.

78. A Mr. Cheung Yuk-yin, a senior executive officer in the Commissioner's department gave evidence. He said that from 1967 to 1969 there was no policy in his department to refuse to register (I understood him to mean license) new 9-seater New Territories taxis. He also said that it was the policy of his department to keep records of interviews between members of the department and of the public. Copies of records of interviews between representatives of the plaintiffs and members of the department concerning taxis were produced dating from 1965 to 1975 and there is not a single reference to an interview concerning the outstanding thirteen vehicles until 1975. It is true that the witness told me that although a memorandum of an interview is usual there might be exceptions, but I find it difficult to believe, and do not believe, that there would not be even one memorandum if there were at least twenty - thirty interviews, if such interviews took place.

79. As I understand the plaintiffs' case with regard to the thirteen licences it is that having been told in 1968 and indeed subsequently that he would not be granted them he was thereby shut off by the Commissioner and there was no point in going to the expense of procuring vehicles and going through the formalities of applying for registration and licensing when the Commissioner had already told him it would be to no avail.

80. I am fully satisfied on the evidence that the plaintiff never made the applications he said he did. My conclusion is based on an accumulation of factors. Why should the plaintiffs make such verbal applications? They already had the answer in the Letter of Authorisation which the plaintiffs' witness said he believed he could use at any time. According to the witness of the defendant, up to the 1st September, 1960 there was no Departmental reason not to license new 9-seater New Territories taxis. I cannot avoid the impression I formed that had the plaintiffs asked to have the thirteen vehicles registered and licensed as taxis and been refused they would have felt aggrieved and said so. They considered they had grievances with regard to other matters pertaining to the issue of Public Light Bus licences and did not hesitate to air those grievances in the letter of the 30th October, 1969 to the acting Colonial Secretary and in the letter dated the 14th November, 1969 to the Commissioner, and, if I may say so, air them at some length. In neither letter is there a reference to a refusal by the Commissioner to permit them to register and license those thirteen New Territories taxis with the consequent deprival of their right or entitlement to a similar number of licences for Public Light Buses.

81. So far as the contention that the Letter of Authorisation created a contractual relationship between the Commissioner and the plaintiffs is concerned no such relationship was ever intended. Letters of Authorisation have no place in the relevant legislation but were issued to be of assistance to both sides. An applicant would seek one to avoid finding himself in possession of a motor vehicle intended to become a taxi and have an application for a taxi licence turned down; the Commissioner was assisted in that certain preliminary investigations might be made as to the suitability of the applicant and the facilities he had for garaging and maintaining a taxi or a fleet of taxis. As I said earlier the plaintiffs were aware of the purpose of a Letter of Authorisation, and I am satisfied that never at any time did they consider the Letter of Authorisation as constituting a binding agreement.

82. Mr. Jackson-Lipkin would also argue that by the Letter of Authorisation the Commissioner is estopped from denying thereafter that the plaintiffs are entitled to acquire the thirteen licences when they care to apply for them. In other words he is saying that where a person makes a representation as to a future benefit he is estopped thereafter from denying it. If I may say so with respect that position was dealt with tersely and effectively by Denning, J. as he then was in Central Property Trust Co. v. High Tree House Ltd.⁽¹⁾ when, distinguishing between a representation as to an existing fact and a representation as to the future he said:

"Such a representation would not give rise to an estoppel because, as was said in Jorden v. Money, (1854) 5 H.L.C. 185 a representation as to the future must be embodied as a contract or be nothing."

Moreover, estoppel is no base on which a plaintiff may anchor a claim; it is no launching pad for an attack on a defendant.

83. I hold that there was no contract between the plaintiffs and the defendant. But even if there were the plaintiffs had no vehicle up to the time when the legislation pertaining to Public Light Buses came into operation, the 1st September, 1969, in respect of which an application for licensing could be made; and no application verbal or otherwise, in anticipation of acquiring one, other than the original application which gave rise to the letter of the 3rd June, 1965 was ever made.

84. I dismiss the case with costs to the defendant.

Representation:

Mr. Jackson-Lipkin & Mr. K.H. Woo (K.Y. Woo & Co.) for Plaintiff.

Mr. Edmunds & Mr. Murphy, C.C. for Defendant/Crown.

(1) (1947) 1 K.B. 130 at 134