Re Chow Cho-dak
Read the full judgment text of HCMP 1551/1981 on BabelCite. This High Court CFI judgment was delivered on 8 June 1982.
1. Pursuant to leave granted on the 25th November, 1981, the applicants applied for judicial review seeking divers usual relief.
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HCMP001551/1981
_____________ Coram: Hon. Liu, Hunter, JJ. in the Full Bench. Date of Handing down of Judgment: 8 June 1982 ___________ JUDGMENT ___________ Liu, J. : 1. Pursuant to leave granted on the 25th November, 1981, the applicants applied for judicial review seeking divers usual relief. 2. Of the grounds set out in the Statement served under Order 53 rule 6 in support of the applicants' application for leave, it was no longer maintained at the hearing that the applicants had any legal right to be granted Hong Kong driving licences. 3. It also transpired that after the Commissioner's refusal on the 9th April, 1981 of the application of each of the applicants for a Hong Kong driving licence, the former solicitors of applicant Chow communicated with the Commissioner for Transport on the 14th April, 1981. One month later on the 14th May, Messrs. H.M. So & Co., the applicants' present solicitors requested for reasons for the Commissioner's said refusal. Some four days later on the 18th May, the former solicitors of applicant Chow also sought from the Commissioner for Transport reasons for his refusal, and on the 29th May, 1981 the Commissioner for Transport replied to the former solicitors of both applicants supplying reasons for his decision. Therefore, the Commissioner for Transport did give reasons for his refusal. The ground founded on the applicants' assertion that no reasons were proffered was therefore unsustainable. However, it was maintained that such reasons were unknown to the applicants and their present solicitors. But that was not a complaint permissible by any the several grounds set out in the Statement in support of the application for leave. As these reasons of the Commissioner were claimed to have been unknown to the applicants and their present solicitors, it was evident that the applicants were not and could not be complaining that these unknown reasons disclosed any error in law or on fact. 4. The remaining ground open to the applicants for judicial review was therefore within a very narrow compass. It was confined to the Commissioner's refusal to issue direct Hong Kong driving licences on the production of the alleged requisite Chinese driving licences and fulfilment of the other conditions in proviso (a) to Regulation 10(1) of the Road Traffic (Driving Licences) Regulations Cap. 220. 5. In the course of the proceedings, counsel for the applicants sought leave to enlarge the grounds in the Statement by a proposed amendment, namely "The Commissioner for Transport acted unfairly in refusing the applicants' applications when he was granting applications made by others who had obtained Chinese licences in similar circumstances". Such alleged unfair discrimination had in fact been raised by the applicants in the affirmation of Yeung Kwok Ying filed as early as the 25th November, 1981. We considered that this attempt to introduce a broader spectrum to the Statement, by which the applicants were bound, should not be entertained at that late stage in the proceedings. Counsel for the applicants indicated that he would require a week to prepare the additional affidavits but was in no position then to define the scope and extent of the alleged abuse. Moreover, in this application for judicial review, the Court was to address itself to the facts then submitted for the consideration of the Commissioner for Transport without recourse to subsequent events. For these reasons, the proposed amendment was rejected and counsel's application was refused. 6. On the very narrow issues, namely whether upon the appellant's fulfilment of the conditions in proviso (a) to Regulation 10(1), the refusal of the Commissioner for Transport was wrong in principle and whether, insofar as the Commissioner had any discretion, he "wrongly failed to exercise" it, We refused the application of both applicants at the conclusion of the proceedings and indicated that we would give reasons later, which I now do. 7. In October, 1980 both applicants were each a holder of a Hong Kong provisional Driving Licence. Applicant Suen had about 20 hours' driving lessons in Hong Kong but had not taken any road test of the Hong Kong Transport Department. Applicant Chow had approximately 200 hours of driving lessons between 1974 to 1979. He had failed four road driving tests in Hong Kong. As a result of publications in two Hong Kong Chinese newspapers, both applicants ultimately found themselves in the Wu Nam Chun Chau Motor Driving Training School in Wu Nam Province, China. Applicant Suen stayed in China for five days, joined the Drivers' Training School for 2* days, of which ten hours were devoted to training on road driving. Applicant Chow was 3 days in the Drivers' Training School and received a total of 12 hours of training on road driving. Applicant Chow qualified his period of stay in the Driving School to five days in his answer to interrogatories subsequently served, but there was no evidence that these particulars were known to the Commissioner for Transport at the material time. 8. Both applicants successfully passed the driving test and were issued with a red driver's licences, which have now been renewed after one year without any of the applicants having sat for a re-test. 9. Through their respective former solicitors, both applicants applied for a direct issue of Hong Kong driving licences on the production of their Chinese driver's licences issued in Wu Nam and evidence of both having successfully completed a test of competence to drive conducted by or on behalf of a competent authority in Wu Nam. 10. On the 9th April, 1981, both of these applicants' applications were rejected, the Commissioner for Transport not having been satisfied that "the conditions as laid down in Regulation 10(1)(a) of the Road Traffic (Driving Licences) Regulations are fully met". It must be clearly appreciated that the Commissioner expressed no concluded view as to whether in fact those conditions had been complied with. He merely stated that he was not satisfied that they had been. 11. Regulation 10(1) and proviso (a) read as follows :
12. The People's Republic of China is a country in the Fifth Schedule to these Regulations. 13. Whether Regulation 10(1) created a permissive or an imperative power, its very terms and the context in which it was envisaged to be exercised must be closely examined. Regulation 10(1) does not seek to introduce two exceptions to the general prohibition against the issuance of a driving licence. The Regulation certainly does not lay down that a driving licence shall not be issued unless the applicant has satisfied the Commissioner that he has passed a driving test or that he has passed a test of competence to drive in a schedule country and holds a driver's licence from that schedule country. It is clearly provided by Regulation 10(1) that the Commissioner "may" issue a driver's licence upon being satisfied that an applicant has passed a test of competence to drive in a schedule country and been issued with a driver's licence by that schedule country. The aim of the proviso is reasonably obvious that the Commissioner is not to act as a rubber-stamp when the conditions prescribed are fulfilled. He is expected to keep himself constantly reminded of his primary duty as a guardian of public safety on the road. The conditions set out in proviso (a) are merely the pre-requisites, the proven existence of which would enjoin the Commissioner to consider how best his discretion should be exercised. 14. Counsel for the applicants submitted that whilst for the purposes of this application for judicial review he conceded the Commissioner as having a residual discretion, the Legislature had circumscribed the exercise of his discretion by specifying precisely what factors to which the Commissioner might lawfully have regard. It was then sought to be driven home the contention that as the Commissioner had a duty to act fairly, he could not wander beyond the confines set by the conditions in proviso (a) and therefore could not go behind what was an apparent test of competence to drive in the schedule country and what appeared to be a full driver's licence issued by a competent authority in the Wu Nam district of that country. 15. In my view, any attempt to put a restraint on the Commissioner's discretion would do much violence to the language of Regulation 10(1) and its proviso (a). The same line of submiss?? presented by counsel for the applicants in different terms, that the Commissioner acted on wrong principles in not issuing a driving licence to each of the applicants upon the fulfilment of the conditions in proviso (a) must necessarily fail. The applicants were not really seeking to challenge any matters which had been taken into consideration by the Commissioner, none of which, so they maintained, was within their knowledge. The applicants could hardly have begun to complain of reasons of which they were allegedly unaware. 16. However, Mr. Chang for the applicants condemned the two given reasons in the Commissioner's letter dated 29th May, 1981 to the former solicitors of both applicants, the first as being irrelevant and the second invalid, built on a mere suspicion. 17. The two reasons given by the Commissioner on 29th May, 1981 are as follows :
18. The first reason given by the Commissioner speaks for itself in the circumstances. The Commissioner was certainly entitled to entertain a doubt as to the standard of performance of the applicants in a much telescoped programme. As for the second reason advanced by the Commissioner for doubting the overall validity and status throughout China of an apparent full licence issued in Wu Nam without the probationary period of six months, it is necessary to go further into the facts then within the knowledge of the Commissioner for Transport : According to Mr. Mulloy, the then Assistant Commissioner for Transport, there were about 500 local residents who had successfully obtained Chinese driving licences on a package tour which included a visit to the Wu Nam Province, the taking of a driving test at a driving school and the issuance, if successful, of a Chinese driving licence. In April 1980, senior members of the Transport Department were sent in a delegation to visit the authorities in Guangdong and Guangzhou, who supplied the Hong Kong Delegation with a copy of the Chinese 1972 Regulations and the information that a full driver's licence would be issued only after six months' safe driving on a "probationary practice driver's licence". On the 30th December, 1980, so much anxiety was caused to the Commissioner for Transport that the Assistant Political Adviser was consulted with a view to soliciting the assistance of the Xinhua News Agency in Hong Kong. On the 19th March, 1982 the Xinhua News Agency rendered assistance. In substance, it was confirmed by Mr. Tan Gan that after passing a competent driving test, there was to be a six months' probationary period of safe driving before a full driving licence was to issue. On the 23rd March, 1981, Crown Counsel attended a meeting with the Operations Section of the Independent Commission Against Corruption. Thereafter, by a memorandum dated 31st March, 1981 the Operations Section communicated with the Commissioner for Transport disclosing the results of interviews with a group selected at random :
19. The Operations Section of I.C.A.C. was sceptical as to the peculiar contractual relationship between the Hong Kong tour company and their counterparty, the Wu Nam Driving School in China, in the following terms :
20. In these circumstances, it is, in my view, beyond argument that the Commissioner did have sufficient justification for doubting the standard of "trained" performance as well as general validity and status of the driver's licences issued in Wu Nam. There were ample disturbing materials then before the Commissioner who was swayed by only relevant considerations. Even if judicial review of the Commissioner's given reasons had not been precluded by the somewhat fettered grounds in the Statement served pursuant to Order 53 rule 6, there was no error which could have called for reparation or redress. 21. What has come within the knowledge of the Commissioner for Transport and those advising him subsequent to his decision made against both applicants on the 9th April, 1981 is not a matter of real significance. The Commissioner had obtained a copy of the 1972 Urban and Highways Traffic Control (Provisional) Regulations issued by the Central Government at Peking, which then affirmed the six months' probationary period before the issuance of a full licence for general use throughout the whole of China. But what has come to light since has reinforced the misgivings and dissatisfaction of the Commissioner for Transport. At the hearing, we were referred to Regulation 18 of the 1972 Regulations which required all drivers to undergo an annual test. We were told that none of the applicants sat for a retest for the renewal of their licences. However, it was argued by Mr. Chang on behalf of the applicants that under Regulation 31, the Wu Nam Province was entitled to promulgate localised rules and regulations for implementing the purport of these 1972 Regulations. Much may be said for the criticism that Regulation 31 should not be deployed by the provincial authority to deviate from essential requirements, such as the provisional' six months' period and the annual re-test. It is unnecessary and quite inappropriate, in the absence of expert evidence, for this Court to construe these 1972 Regulations applicable or provisionally applicable to a schedule country. Suffice it to say that the misgivings of the Commissioner for Transport have since been sufficiently corroborated. Much play was made of the amendments to Regulation 10(1)(a), but the amendments have simply introduced more pre-requisites before the Commissioner for Transport may be called upon to exercise his discretion under Regulation 10(1). Answers to the interrogatories ordered also did not advance the applicants' case further. The additional information furnished was unknown to the Commissioner at the time of his refusal and could have but little relevance. 22. For all these reasons, I dismissed the application of both applicants with costs to the respondent.
HUNTER, J. 23. By this Judicial Review the applicants Chow Chao-dak and Suen Man-sang sought primarily Orders of Certiorari and Mandamus against the Commissioner for Transport. The aim of each was to obtain a Hong Kong Driving Licence. Certiorari was sought to quash the Commissioner's refusal to grant such a licence: Mandamus to compel him to issue one. 24. The Claim turned upon the true construction of paragraph 10(1) of the Road Traffic (Driving Licences) Regulation, Cap. 220. At the material time and until 13th January 1982 this paragraph read as follow:-
One of the countries listed in the Fifth Schedule is the People's Republic of China. 25. The applicants are in substantially the same position, we are told, as some 512 other persons. The first applicant, Mr. Chow's circumstances are typical. Over a six year period he has received some 200 hours driving instruction, but has failed to pass his driving test on no less than four occasions. In October 1980 he travelled to Wu Nam Province, and for three days attended the Wu Nam Chui Chaw Motor Driver Training School receiving some 12 hours instruction. In association with a Hong Kong firm which acted as its recruiting and travel agent and cashier, this School offered driving instruction specifically to residents in Hong Kong and Macau. In visiting this School, it was plainly the intention of the 1st applicant, and of a large number of others who did the same thing, to obtain documents which they hoped later to be able to convert into a Hong Kong Licence. The 1st applicant's initial hopes were fulfilled in that he took and was adjudged to have passed a test of competence, and he returned to Hong Kong possessed of a driving licence in the Red Form usually issued only to fully qualified drivers in China. He later received two certificates, one from Chun Chau District Traffic Department, and the other from Wu Nam Province Chun Chau District Traffic Department, which speak as to the testing procedures and as to the authenticity of the licences issued as a result. 26. Thereafter the applicants applied to the Commissioner for licences. Their case to the Commissioner and to the Court was that the documents they had obtained from China satisfied the conditions expressed in the proviso to paragraph 10, so that the Commissioner should have issued licences to them pursuant to their request. In fact after extended consideration the Commissioner in April 1981 refused the applications. In addition to the matters put before him by the applicants, the facts and matters which the Commissioner then took into consideration are set out in paragraphs 4 and 5 of an affidavit of Gareth Niall Mulloy filed 14th May 1982. In particular these matters included:-
27. The Commissioner's refusal of the applications was communicated to the applicant's then solicitors by letter dated 9th April 1981. At the request of the said solicitors, in a further letter dated 29th May 1981 the Commissioner stated the reasons for his refusal. The Commissioner cannot be blamed for the fact that a change of representation apparently prevented the latter letter from reaching the applicants. In summary form these reasons were that the Commissioner was not satisfied:-
The applicants challenged the validity and propriety of both these reasons. Reason 1 28. The issue here was the extent of the residual discretion left to the Commissioner under paragraph 10 of the Regulations. Is the Commissioner in effect bound by the documents, so that if they established the two conditions named in the proviso he had no choice but to issue a Hong Kong licence: or do the documents constitute only prima facie but not conclusive evidence of the applicants suitability to receive a licence. 29. It was conceded by Mr. Dennis Chang, Q.C., and in my view rightly, that same discretion was left in the Commissioner under this paragraph, and that "may" should not here be read as meaning "must". But said Mr. Chang this discretion is very limited. The Commissioner's function was not to consider the competence or suitability of the applicant, but the sufficiency of the documents. If these objectively satisfied the stated conditions, the Commissioner had no choice but to grant a licence. Unless he did that he would not be acting fairly and consistently as between all applicants. If followed, the argument ran, that it was not open to the Commissioner to consider, for example, the sufficiency of the testing procedures. His first answer was therefore irrelevant and his decision was vitiated for having been based upon irrelevant material. 30. I am unable to accept this argument for a number of reasons namely:-
31. I therefore conclude that the applicants competence and the sufficiency of this school's testing procedures were the proper subject matter of enquiry by the Commissioner. It is plain, and indeed not seriously disputed, that on the facts there was before the Commissioner material sufficient to justify his conclusion. The I.C.A.C. Report: the brevity of the training period: and the demonstrable risk of repeated test failures such as the first applicant seeking to use this facility to obtain circuitously what they could not obtain directly, all justify the Commissioner's conclusion. 32. In my judgment therefore the Commissioner was entitled to reach the conclusion expressed in his first reason, and on this ground alone the applications must fail. Reason 2 33. It was common ground here that the paragraph imposes upon the applicant an obligation to "satisfy" the Commissioner. But the applicants here contend that the Commissioner ought to have been satisfied by the plain terms of the documentation produced by them particularly the Red Form of Licence and the two certificates above referred to. The second certificate made reference to Section 31 of the 1972 Regulations, and points to the Province's authority to act as it did. Further, say the applicants, there is no evidence that these licences have been disclaimed by Central Government. 34. In support of the "severe doubts" sworn to by Mr. Mulloy, the Commissioner pointed particularly to the following matters namely:-
35. Further it emerged at the hearing that this Prevince may have departed significantly from the 1972 Regulations in another respect. Regulation 18 requires valid drivers to be tested annually. But we were told that the applicants licences had been renewed after the first year without any further testing requirement. 36. The dispute here is one as to Chinese Law and Practice which it is neither possible nor necessary for this Court to resolve. Under Regulation 10 the onus is on the applicant to "satisfy" the Commissioner. The Commissioner's second reason is inviolate if there were before him facts which constituted reasonable grounds for his decision. On the above analysis it is to me plain that reasonable grounds for doubting the validity and status of these licences existed, and that the Commissioner was entitled therefore to say that he was not satisfied. This second reason also was therefore well founded. 37. For these reasons at the conclusion of the hearing I concurred in the dismissal of the applications with costs.
Representation: Mr. Denis Chang, Q.C. and Mr. Kenneth Ho (H.M. So & Co.) for the applicants. Mr. N.T. Kaplan, and Mr. R.A. McCallough (Crown Solicitors) for the Respondent. |