Re Leung Mo-chu
Read the full judgment text of HCMP 369/1980 on BabelCite. This High Court CFI judgment.
1. Until 1959 Hong Kong exported textile products without restraint to must territories. In 1959, Hong Kong agreed to subject its textile exports to the United Kingdom to a self-imposed limitation. Thereafter there have been a multitude of bilateral restraint agreements on textile exports with various countries, which presently include the United States of America, the European Economic Community, Canada, Finland, Sweden, Austria and Switzerland. A code of accepted practice and guidelines has de
Cites 1 case
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HCMP000369/1980
----------------- Coram: Liu and Macdougall, JJ. in Court. Date of Judgment: 9th October, 1980. ----------------- JUDGMENT ----------------- Liu, J.: 1. Until 1959 Hong Kong exported textile products without restraint to must territories. In 1959, Hong Kong agreed to subject its textile exports to the United Kingdom to a self-imposed limitation. Thereafter there have been a multitude of bilateral restraint agreements on textile exports with various countries, which presently include the United States of America, the European Economic Community, Canada, Finland, Sweden, Austria and Switzerland. A code of accepted practice and guidelines has developed into a set of inter-national rules, better known as "the Arrangement Regarding International Trade in Textiles" which is concisely described as "the Multi-Fibre Arrangement" or "the M.F.A." Under the M.F.A., Hong Kong has been able to retain some of her rights in free trade but has nevertheless to yield to certain restraints. The M.F.A., in effect, leaves Hong Kong with some fluidity on recognizable principles within which hopefully the restraint limit may be negotiated to her advantage. Hong Kong has, of course, the obligation to honour her commitments under the M.F.A. and, as a starting-point, must demonstrate her ability to suppress exports below these maximum concessions of her international counterparts. 2. A quantitative restraint is preferable and has been secured by Hong Kong. Towards that end, a quota system has been devised for exports to countries under the M.F.A. The importance of supervision and policing of exports under the quota system cannot be more strongly emphasised by Mr. Tsao, our acting Director of Trade Industry and Customs. 3. The Director has, admittedly, no power under the Import and Export Ordinance to make regulations for "the imposition and administration of quota controls". The Director has laid down some "instructions of an administrative nature, governing the creation and administration of a quota allocation scheme". In Wong Man-shun v. R.(1), in delivering the judgment of the Court of Appeal the Chief Justice found "no objection in law" to this scheme and was of the opinion that the Governor in Council had impliedly approved the operation of the quota allocation system which remains subordinate to and can be overridden by such regulations as may be made under section 31(1)(q) of the Ordinance. 4. These administrative instructions were promulgated with a view to regulating export licences and should be implemented compatibly with the proper exercise of the power to issue these licences under section 3(1) of the Ordinance. 5. In implementing and operating the export quota control scheme, the Director consults and confers with the Textiles Advisory Board which is comprised of 15 prominent members of the textile trade and is under his ex-officio chairmanship. 6. In early February 1979, the Director received a complaint from Her Majesty's Customs & Excise that certain textile consignments of Hong Kong origin had landed in England under the cover of Indonesian documentation without the requisite quotas. 7. Divers documents were thereafter seized by the Director from the applicant company, the Alliance Trading Company. These documents, on their proper production, would enable a judicial tribunal to reach the following conclusions:
8. Hong Kong's reputation has been tarnished, but the applicant cannot be fixed with any liability without formal proceedings in which these documents may hopefully be tendered and proved. 9. After investigation and on advice, the Director considered "that a prosecution could not be sustained because of the inherent difficulty of obtaining evidence from outside jurisdiction and because there was insufficient evidence to establish certain other elements of the offence". 10. On the completion of investigations, "the Director came to the view that it was imperative that he should take administrative action to fulfil his obligations under the M.F.A." Whereupon the Director was desirous of calling upon the companies accused to surrender an equal quantity of quota for the same or other category which should have accompanied the transhipment. Such surrender was requested under threat of suspension or refusal of export licensing facilities to the European Economic Community in the interim. The Director notified the applicant of his intention and invited representations. The notification of the Director drew an indignant reply. 11. By a letter dated the 31st December 1979 to the Alliance Trading Company, the Director informed the applicant that its "1980 preliminary quota allocation will be withheld until they have complied with the Director's penalty". Initially, the Director required a permanent surrender by the applicant of 18,522 pieces of Category 8 quota for the United Kingdom market. Ultimately, the Director was prepared to accept a surrender of 18,522 pieces quota in equal shares from the applicant company and another company allegedly involved. Without prejudice, the Director was willing to consider a surrender of quotas in other categories. The Director was adamant that "until the full amount of quota required has been surrendered on a permanent basis, export licensing facilities for textiles to the E.E.C. will continue to be denied". The Director also decided to withhold the applicant's 1980 preliminary allocation of quotas. It was implicit from the decision of the Director that the quotas for 1980 which would have been allocated to the applicant could not be sold, transferred or otherwise taken advantage of. 12. The applicant company has had no Category 8 quotas, and in 1979 Alliance Trading Company was allocated 4,463 pieces of Category 7 quota for Belgium, Netherland and Luxemberg. 13. The Director purported to impose these conditions in the above terms under section 3(1) of the Import and Export Ordinance. By a letter to the applicant's solicitors dated 4th March 1980, the Legal Department intimated that the action taken by the Director was administrative in nature "against violators of the quota system" so as to "preserve the integrity of Hong Kong's quota system in the eyes of its international trading partners". 14. 18,522 pieces of Category 8 quota are worth in the region of a quarter of a million dollars in the market. The loss to the applicant of its 1980 allocation would be additional. 15. I turn next to the relevant provisions under the Import and Export Ordinance and the Regulations made thereunder. It would be more convenient to begin with Regulation 4 of the Import and Export (General) Regulations under which no textiles are to be exported to any country without a licence. Any contravention of this regulation is a criminal offence punishable on conviction by a fine of $50,000 and one year's imprisonment. Regulation 5(1) prohibits the exportation of goods to any territories subject to a quota system without a licence which may only be obtained by a holder of a valid quota allocation certificate. Thus, Regulation 5(1) attaches a pre-condition to the issue of an export licence in respect of a country subject to a quota system. Sub-regulation (2) of that regulation reads as follows:
These regulations were made under section 3(2) of the Ordinance. 16. Section 3(1) of the Ordinance reads as follows:
17. The treble use of the word "may" in section 3(1) has given rise to countless interpretation difficulties. The last word "may" governs the nature of the conditions sought to be imposed, and these conditions are to be such as the Director "may see fit". That is plain language for endowing the Director with a discretion. The question is how wide that discretion is and in what way it should be exercised. 18. In my view, the second "may" also clearly introduces an element of discretion. A Director may or may not attach conditions. The question to be asked is the same as that for the last word "may". 19. Whether section 3(1) empowers the Director to attach conditions to the issue of a licence or to the licence itself presents yet a further moot point. It is provided by section 31(1)(d) that the Governor in Council may make regulation for prescribing conditions to be observed before or after the issue of a licence. One may be forgiven for doubting if conditions for its issue were deliberately omitted and whether any distinction was intended to be drawn between "observed" and "performed". Conditions to be observed may well be different from conditions to be performed. A condition prohibiting shipment of goods other than as specified in the licence is, strictly speaking, a condition to be observed. A condition requiring the submission of the application form in quadruplicate is a condition to be performed. Beside them, there exist conditions which are neither to be observed nor performed, such as that in Regulation 5 of the Import and Export (General) Regulations which seems to be more of the nature of a qualifying prerequisite: It prohibits the issue of a licence unless the applicant is a holder of a valid quota allocation certificate or a valid export authorisation. A condition providing for the expiry of the issued licence is a restrictive condition as to its duration but is neither a condition to be observed or performed, nor a qualifying condition. A condition providing for the issue of a licence upon payment of a fee is a condition attached to or for the issue of a licence. It may, in that respect, be distinguished from conditions prescribed by section 31(1)(d) which are to be observed before or after the issue of a licence and may not be intended to cover conditions for the issue of a licence. Of course, some of these conditions may overlap. A condition to be observed after the issue of a licence is certainly not a condition attached to the issue of it, though it may broadly be said to be a condition attached to the licence; and a condition to be observed before the issue of a licence cannot be a condition attached to the licence, though it may be looked upon in terms of a condition attached to its issuance. If conditions are to be judged ssimply either as conditions precedent for the issue of a licence or conditions subsequent for the licence itself, the position would become less entangled. 20. Regulation 5(2) of the Import and Export (General) Regulations expressly provides that the qualifying status laid down as a pre-condition in Regulation 5(1) shall not prejudice the Director's powers under section 3 of the Ordinance. Therefore, Regulation 5 may be said to ally section 3(1) with a provision for attaching pre-conditions to the issue of the licence rather than the licence itself. The Department's Form 4 and Form 5 for applying for an export licence refer to "Conditions of issue of this licence". With one exception, they are all conditions to be observed before the issue of a licence. Section 3(1) is associated with pre-conditions, and pre-conditions have been grouped under the term "Conditions of issue of licence". Therefore, more likely than not, conditions under section 3(1) are intended for the issue of the licence and not the licence itself. However, it is quite unnecessary to decide whether by section 3(1) the Director is empowered to attach conditions to the issue of the licence or to the very licence itself, as, for "conditions", in each case the Director must exercise his administrative executive discretion, wide though it may be, according to law. 21. Lastly, I turn to the first word "may" in section 3(1). "May" generally signifies a discretion, and on the face of it, that power seems to be unfettered. The respondent's argument is that when the object of the Ordinance involves a large "policy" content and its exercise affects large numbers of people, no limitation ought to be lightly implied.(2) For our purpose, that submission begs the question. Granted that within its extent and scope, the court should be slow to imply an intention to limit what appears to be an unfettered power, but the passages cited in Smith do not even begin to condone any exercise of an unfettered discretion beyond its range. The Director has at least a duty to consider an application for a licence under section 3(1), and if his power to issue licences is merely discretionary, it has yet to be determined what discretion is reposed in the Director in entertaining applications. What is the limit, if any, of his discretion? Would the fetter, if any, on his discretion ultimately impose or have the effect of imposing a duty to exercise it? In other words, must the Director grant an application properly supported or has he an absolute power to decline granting it? If a licence should be granted at some stage, will the Director be granting it in the proper exercise of his discretion or has it then become a duty for him to accede to the applica7tion? There is, though, no practical difference in these two premises so posed. 22. Counsel for the applicant relied on Sheffield Corporation v. Luxford, The same v. Morrell(3) for the proposition that enabling permissive words could be interpreted as imperative. But the essence of Sheffield Corporation's decision sprang from the notably renowned statement in Julius v. Bishop of Oxford(4): "Enabling words are construed as compulsory whenever the object of the power is to effectuate a legal right". In Sheffield Corporation, the plaintiff sought to enforce a landlord's right to possession after having duly served a notice to quit, and it was held that upon proof of a landlord's right to possession out of which the power arose, the County Court Judge would be left with no further discretion but to make an order for possession. 23. At the other end of the spectrum is the case of British Oxygen Co. Ltd. v. Minister of Technology(5) where the Minister might grant a subsidy towards approved capital expenditure incurred by the installation of new machinery or plant. At page 624 E/F, Lord Reid found nothing in the legislation to require the Minister "to pay grants to all who are eligible". At page 629H, Viscount Dilhorne observed:
24. These two cases are diametrically opposite. The bone of contention seems to be focussed on residual executive discretion. Obviously, in between examples are multitudinous. It is necessary, therefore, to return to the case of Julius v. Bishop of Oxford(4) for the parameter of the principle. In that case, it was provided that with regard to certain charges against any Clerk in Holy Orders it "shall be lawful" to issue a commission for inquiry. It was held that the words "shall be lawful" created a power without imposing any duty on the Bishop. 25. Julius' case was considered in their Lordships' House in Padfield v. Minister of Agriculture, Fisheries and Food(6) where the power of the Minister to appoint a committee of investigation as regards the price of milk in different regions was reviewed. Judgment had been entered against the milk producers who were found not to be "entitled" to call upon the Minister to exercise his power of appointing a committee of investigation. Lord Reid accepted the Minister as having no duty to discharge but allowed the appeal on the ground that the Minister had failed to exercise his discretion "in accord with the intention of the statute which conferred it." On "executive duty", he cited with approval an observation of Lord Cairns L.C. in Julius' case (pages 222 to 223) at page 1033C:
26. At 1033 D/E, Lord Reid continued:
27. At pages 1038G to 1039A, in his dissenting judgment on the facts but not on the law, Lord Morris recounted the rationale of Earl Cairns L.C. given at p.225 in Julius' case:
28. Lord Morris shared the common view that "the Minister had a discretion" and no "positive duty" (page 1040F) but found the Minister's discretion properly exercised. 29. At pages 1045G and 1046 A/B, Lord Hodson concluded that no legal right was vested in the milk producers but that the Minister had yet to exercise his discretion properly:
30. At page 1052G, Lord Pearce said of the decision in Julius' case as resting "on the construction of the particular Act" and making it "clear that in the context of an Act is to be found the answer to the question how a power given by it is to be exercised". Lord Pearce also cited with approval the same observations of Earl Cairns and Lord Penzance. He stressed the importance of the speech of Lord Selborne at page 235 in Julius' case:
31. At page 1053 D/E, Lord Pearce observed that the Minister had no other duty to act than that of processing the application according to law:
32. Having stated the obvious at page 1057G "that the Parliament would have used different words if it had intended that the Minister was under a duty to refer every complaint to the committee of investigation", at page 1058 A/B, Lord Upjohn epitomized the practical difficulties:
33. In Padfield's case,(6) for want of a legal right, attention was necessarily diverted to the concept of "proper exercise of a discretion." 34. If acquisition of a legal right is attainable with regard to the Director's power to grant licences under section 3(1), then it must be asked what must be done and whether enough has been done by the applicant to acquire that legal right to the issue of a licence. If no legal right could arise or has arisen under section 3(1), the question can only be: How is the Director's discretion to be exercised? 35. In Essex County Council v. Minister of Housing and Local Government (7) Plowman, J. said this of the "administrative legislative power of the Minister":
36. Thus, the Director's position must be examined with reference to the subject-matter, the class of persons affected, the requirements envisaged and the spirit of the Ordinance but in the context of section 3(1). The nature of the Director's power to grant licences must necessarily be confined to the narrower compass of section 3(1) by which it is conferred. 37. I would leave the Director's power to grant licences momentarily as I propose first to examine the nature of the Director's power to impose and select conditions and the manner in which that condition-making power ought to be exercised. This would entail a study of wide-ranging topics including the class of persons for whose benefit the licences may be granted, the conditions expected to be fulfilled by that class upon their applications for licences, the occasions on which and the manner in which the licences are to be required, and the general scope and objects of the Ordinance. A like survey of these very same aspects must be undertaken for unravelling the vexed questions whether in the issue of licences the Director has a discretion or whether at some stage he is obliged to act under a duty, and in the former case in what manner should the discretion be exercised and in the latter at what time has the applicant acquired a legal right to entitle him to call for the issuance of licences by the Director. 38. Section 3(1) falls within Part II of the Import and Export Ordinance under the heading of "Administrative Decisions and Appeals". The business community would shudder to think of the irrational possibility that an export licence could be refused after completion of all the formalities necessary for processing applications and monitoring international movements of goods. Dispatch of merchandise from Hong Kong need be assured of landing right at destination. Sufficient information should be furnished prior to shipment to facilitate clearance at both ends. Chaos and disappointment can only be avoided or minimized if all necessary permits, quota and other documents are well secured and confirmed. The intention of the Legislature was "to provide for the regulation and control of ", inter alia, "the export of articles".(8) It is no concern of the Ordinance to promote international understanding or uphold Hong Kong's worldwide trading image. The general purpose sought to be achieved by the Ordinance would be stultified by the imposition of conditions not inherently required or necessary for the oversea delivery of goods in the export trade. All exporters must operate with the expectation that once these formalities have been fulfilled, no licence would be unreasonably withheld. Any imposed condition which has the effect of defeating such expectation offends against common sense and is an improper exercise of power as condemned by Lord Denning, as he then was in the House of Lords, in Fawcett Properties Ltd. v. Buckingham County Council.(9) The general intention of the Ordinance to grant a licence upon compliance with the usual formalities is fortified by the understanding of the officials of the Trade Industry and Customs Department reflected in paragraph 2 in a paper on operation of "The Textile Export Control System", exhibited to the affidavit of Mr. Tsao filed herein on the 9th July 1980 and therein marked "PT-2":
39. It was printed on the official applications for an export licence known as Form 4 and Form 5:
40. On the back of these forms is indorsed:
41. Note:
42. These conditions are conditions of an administrative nature directed at the particular export under consideration, for which the licence is being sought. They are not concerned with past, future or any other transactions. The conditions envisaged by section 3(1) must, in my view, relate to the mechanics of the issue of a licence and regulation of international movements of goods and must not seek to stray from matters pertaining to that very licence under application. The Director must "genuinely address (himself) to the application before (him), consider it on its individual merits."(10) 43. Section 3(1) deals with the issue of a licence "required" under the Ordinance. It does not make the issue of a licence "for the purpose of" the Ordinance. It matters not whether the conditions imposed are to be attached to the issue of the licence or the licence itself. In either case, for the imposition of conditions and their selection, obviously the Director, in the words of Lord Reid at page 1030A of Padfield's case,(6) "must have at least some measure of discretion". The learned Law Lord thereupon posed the question, "But is it unfettered?", to which he provided an answer (marginal reference B/C):
44. In the same case at page 1054G, Lord Pearce observed:
45. At page 1060G, in his judgment Lord Upjohn said of the judicial control over the executive as follows:
46. But naturally, as confined by the succinct limitation of Plowman J. in Essex County Council v. Minister of Housing and Local Government,(7) the discretion, though to be ascertained from more sources than one, can only be "as wide as the language can make it". Such restraint cannot be circumvented under the guise of policy or international commitment. After all, the Director is a creature of statute and can possess only such powers as may be given him by section 3(1). "The role of the courts is limited to ensure that discretion has been exercised according to law."(11) Garner on Administrative Law, 5th edition postulates at page 152:
47. I pass then to examine more closely the ambit of an executive discretion and its susceptability to judicial control. Some assistance may be derived from a passage at page 295 in Smith on Judicial Review of Administrative Action, 4th edition:
48. In Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation,(12) Lord Greene M.R. considered judicial control of the exercise of an executive power as stemming from a desire of the courts to oversee that a statutory body have not "contravened the law by acting in excess of the power which Parliament has confided in them." 49. If a statutory body act within the language of the section which confers their discretion, their action cannot be censored as being unreasonable. At page 228 in Wednesbury Corporation, Lord Greene M.R. observed:
50. In Wednesbury Corporation(12) the condition imposed by the authority was that children under 15 should be excluded from a theatre on Sundays whether or not accompanied by an adult. The imposition was held not to be assailable merely by reason that the court "took a different view of what was the public interest." 51. Later, at page 229 the learned Law Lord defined the extent to which an executive discretion may be interfered with:
52. In the case of Padfield,(6) at page 1041B, Lord Morris put these material considerations enumerated by Lord Greene in Wednesbury Corporation(12) into four neat compartments:
53. At page 1058A, Lord Upjohn adopted the same analysis. 54. At pages 364 and 365 of Administrative Law, 4th edition Dr. Wade comments:
55. A resume' of the Canadian case referred to in Wade is given at page 346 of the same volume:
56. The principles propounded by Lord Greene M.R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation(12) was concisely restated by Lord Denning, as he then was in the House of Lords, in Fawcett Properties Ltd. v. Buckingham County Council(9):
57. However laudable may be the Director's policy and whatever sanction public interest may demand, neither is the exclusive nor even the most relevant considerations to which regard must be had. At page 233, Lord Greene, M.R. in Wednesbury Corporation(12) had this to say:
58. In Julius v. Bishop of Oxford(4) Lord Penzance said of public interest at page 230 thus:
59. At page 244, Lord Blackburn embraced the same approach:
60. All relevant considerations aside, it need be constantly remembered that "the discretion conferred on (the Director) by the section is as wide as language can make it"(17) 61. In conclusion, the Director's executive discretion to impose and select conditions must be closely tied to the language of section 3(1), and within that framework, it is to be exercised in accordance with the general purpose of the Ordinance, policy and public interest. It should be exercised only in relation to matters proximately linked to the issue of a licence required under the Ordinance. Such condition-making power must be kept free from all influence of extraneous considerations. The Director must address himself to the application before him. He must not introduce conditions alien to the very application under consideration or not strictly necessary for the monitoring of the export trade. The exercise of his discretion must never produce a result which would offend against common sense or the dictates of business efficacy. If, indeed, the Director is at liberty to impose any conditions including those of a penal nature, the penal and evidentiary provisions in the Ordinance would become redundant. The Director's motive is laudable. He desires a regurgitation of the ill-gotten gains by the applicant. But conditions aimed at attaining that end are clearly unrelated to the issue of a licence; they are based on past conduct and motivated by considerations extraneous to the current application, particularly the objective of redressing an alleged former breach. Such action frustrates the general purpose of the Ordinance as it was, at one time, universally understood. In this sense, in his imposition of conditions the Director has not acted according to law. The allocation of quotas is an administrative procedure devised by the Director for the better control of export licensing facilities, and thus it must be operated within the same narrow framework of section 3(1). Mr. Tsao and Mr. Yue have explained that allocation will be made on the basis of usage in the preceding year. For all these reasons, no oppressive conditions of like nature as those under consideration, should be imposed. In my judgment, the conditions imposed are ultra vires section 3(1). 62. I return now to the first "may" for the Director's power to issue licences. I have compared section 3(1) with section 5(2) of the Ordinance which provides that in the exercise of inter alia any powers under the Ordinance, the Director shall comply with any directions given by the Governor. The imperative nature of the Director's obedience to the Governor's directions is in sharp contrast with the permissive language used for the power in section 3(1) as reflected by the presence of the word "may". It is arguable that if indeed, a mandatory duty was intended, the Legislature could easily have expressed its intention in clear language. Furthermore, in recent years, there has been a tendency to assume the intention of the Legislature as conferring a discretion by the use of the word "may". See page 284 Smith. I have constantly reminded myself of these aspects. 63. But the guidelines given by Earl Cairns and Lord Selborne in Julius' case(4) must never be overlooked. A power created "for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the Legislature of the conditions upon which they are entitled to call for its exercise ... ought to be exercised." Circumstances may be such that where the Legislature has "singled out particular individuals who might naturally be supposed to have a personal interest" "and laid down conditions which they are to comply with", the executive can be called upon to act. The question whether the Director "is bound to use" his power "upon any particular occasion", "in any particular manner must be solved aliunde, and, in general, it is to be solved from the context, from the particular provisions, or from the general scope and objects, of the enactment conferring the power". In Padfield's case(6) Lord Reid found "ample authority for going behind" the permissive language of the provision "to find what was intended". 64. Section 3(1) was enacted for the benefit of importers and exporters as a class. The conditions upon which they may become ontitled to call for the exercise of this power are widely known as being merely administrative or procedural. The general purpose of the Ordinance is to provide an efficient system for the import and export trade. In my view, if section 3(1) leaves any residual discretion, even upon compliance with the usual formalities and fulfilment of such conditions as may be properly imposed, such discretion to issue a licence should then be exercised in favour of the applicant. 65. Section 3(1) does not empower the Director as a repository of a discretion to impose unrelated oppressive conditions or to capriciously refuse an application. In the ultimate exercise of his power, the Director approaches very close to the thin line of demarcation dividing the area in which a discretion ought to be exercised and the area in which a legal right has finally been acquired so as to impose a duty for the Director to discharge. 66. Examples of a statutory body held obliged to act when all the procedural requirements have been followed are given at page 284 Smith on Judicial Review of Administrative Action, 4th edition and page 218 Wade on Administrative Law, 4th edition, e.g. renewal of taxi-cab and stevedores licences, approval of building plans. 67. It does not follow that upon circumstances being shown to have warranted the exercise of an executive discretion, the Director in whom a power is reposed must necessarily come under some duty to act. Conversely, a concession that the executive is under no duty to exercise a statutory power is no bar to a claim that whatever the executive discretion, it has not been exercised according to law. In Padfield's case(6), the aggrieved milk producers were not precluded from challenging the improper exercise of the Minister's discretion after an admission of his want of duty to appoint a committee of investigation. 68. In these proceedings, it is quite unnecessary for me to venture further. Export licences are not to be withheld from qualified applicants. If, indeed, the power to grant or refuse a licence is completely at large and the Director is free to seek any assurances from an importer or exporter on pain of a refusal, it would be superfluous to incorporate in section 3(1) any condition-making power. The Director's power to issue licences is indeed somewhat exceptional. For all these reasons, it would seem that the applicant has acquired a legal right to call for the issue of the licence on his compliance with formalities and fulfilment of proper conditions. In effect, despite the prima facie permissive language, upon compliance with and fulfilment of these formalities and proper conditions, the applicant would be, in the words of Lord Morris in Padfield's case at pages 1038G to 1039A, "entitled to call for" the exercise of the Director's power under section 3(1). Unlike the case of British Oxygen Co. Ltd.(5), if all the formalities are completed and proper conditions fulfilled, in my view, the Director will be left with no residual discretion but is obliged to grant the licence. Not entirely without hesitation or diffidence, I am of the opinion that the Director has, in the above analysis, a duty to discharge under section 3(1). 69. There are real issues here for adjudication. The appellant's complaint is of substance. The applicant's grievance in this case cannot fairly be equated with the non-justiceable issues in the case of Fred Jackson v. A.G.(13) 70. Finally, I come to the contention of the respondent that the declarations sought by the applicant are matters of judicial discretion, which should be declined in view of the inequitable conduct on the part of the applicant. It is plain that however the applicant is alleged to have misconducted himself, his conduct related to a past shipment. There can be no association between his alleged past misconduct and his conduct in the present application. 71. This court was referred to Searl v. South British Insurance Co. Ltd.(14) where the applicant for a writ of Mandamus was the lessee of demised premises under a covenant to keep the buildings in good and tenantable repair. Part of the demised premises was destroyed by fire, and the tenant applied for a writ of Mandamus to compel the insurance company to apply the insurance money towards reinstatement of the damaged portion. It was held that although the applicant was entitled by law to compel the insurance company to apply the insurance money in reinstating the destroyed portion, in the exercise of its discretion the court should refuse to grant the writ when the effect of it would be to enable the applicant to escape the contractual obligations under his covenant to repair. At page 143 Sim, J. referred to R. v. Garland(15):
72. Searl's case deals with the subsistence of an enforceable obligation, the avoidance of which was considered by the court to be inequitable as well as improper. 73. The next case is New Zealand Waterside Workers Industrial Union of Workers v. Deputy Judge Dalzlish and Members of Waterfront Industry Authority,(16) where O'Leary, C.J. declined to exercise his judicial discretion to grant a writ of Mandamus compelling members of the Waterfront Industry Authority to determine certain matters by reason of improper conduct on the part of the plaintiff union and of his nominees on the Waterfront Industry Authority. The independence and the integrity of the Authority were impeached. It was commented that the Authority was amenable to ministerial dictation and had no real intention of truly examining and adjudicating upon the claims according to the merits. The chairman and the employers' nominees on the Authority were "cheeky, insolent and presumptious". The chairman of the Authority was accused of having provoked the nominees of the union to walk off the Authority thus bringing about an evasion of responsibility. 74. At page 790 line 14, the learned Chief Justice said of the applicant and his nominees on the Authority that they "have, apart from other reprehensible acts, impugned the integrity of that Authority, and undermined, or endeavoured to undermine, its deliberations. The actions complained of have resulted in the Tribunal ceasing to have any of the outward characteristics of a judicial authority, and the nature of relations between the members is such as to make it undesirable that it continue to try to function without the assurances asked for by the chairman." 75. In line 28, the learned Chief Justice asked a rhectorical question:
76. Lastly the case of R. v. Stafford Justices(17) is one on the point of delay precluding the applicant from taking an objection. At page 46 Sir Wilfred Greene, M.R. had this to say:
77. There has been no allegation of delay; nor has the applicant been accused of being disrespectful to the authority of the Director. No other existing or enforceable legal right is in issue or would be affected. The respondent seeks to tie the alleged past misconduct of the applicant with his current entitlement to export licensing facilities or quotas. The applicant's alleged past conduct is unconnected with his current entitlement or disagree-ment with the Director on the imposed conditions. It would be unthinkable even to attempt to impose exacting conditions on an applicant with known underworld connections specialising in smuggling activities. The applicant is nowhere near that description. There can be no inequity in granting the applicant the declarations in respect to the Director's imposition of stringent conditions under section 3(1) which I have found to be contrary to law. The applicant succeeds, in my judgment, in establishing that the conditions imposed by the Director under section 3(1) are ultra vires. There is nothing in the circumstances of this case which would make it right to invoke my judicial discretion to refuse the declarations sought.
Representation: (1) Criminal Appeal No. 968 of 1979, judgment of which was delivered on 17.4.80. (2) See Smith on Judicial Review in Administrative Action, 4th edition, pages 297 and 343. (3) (1929) 2 K.B. 180. (4) (1880) 5 A.C. 214, at page 244 per Lord Blackburn. (5) (1971) A.C. 610. (6) (1968) A.C. 997. (7) (1968) 66 L.G.R. 23 at page 31; (1967) 18 P & CR 531 at page 538. (8) The preamble of the Import and Export Ordinance, Cap. 60. (9) (1960) 3 A.E.R. 503 at page 518B. (10) Smith on Judicial Review of Administrative Action, 4th edition, pages 285 & 295. (11) Smith on Judicial Review of Administrative Action, 4th edition at pages 341. (12) (1948) 1 K.B. 223 at page 234; (1947) 2 A.E.R. 680 at page 685D. (6) (1968) A.C. 997 at p.p.1017D and 1046A: It was conceded that the Minister had an absolute discretion to shut out "trivial, frivolous or vexatious complaints". (13) C.A. 58 of 1979, the judgment of which was delivered on 30.5.80. (14) (1916) N.Z.L.R. 137 (15) L.R. 5 Q.B. 269. (16) (1949) N.Z.L.R. 783. (17) (1940) 2 K.B. 33.
----------------- Coram: Liu and Macdougall, JJ. in Court. Date of Judgment: 9th October, 1980. ----------------- JUDGMENT ----------------- Macdougall, J.: This is an application by one Leung Mo Chu trading as Alliance Trading Company for two declarations that certain decisions made by the Director of Trade, Industry and Customs ("the Director") are null, void, invalid and of no effect. The decisions of the Director in respect of which relief is sought are (1) a decision or decisions to refuse the applicant export licensing facilities, including facilities to transfer out quotas, in respect of textiles to the European Economic Community ("the EEC") from 1980 and for the duration of the current Hong Kong EEC Textiles Agreement until he surrenders on a permanent basis, either alone or jointly with one Hinson Company Limited, 18,522 pieces of 1980 category 8 quota for the United Kingdom market or surrenders on the same basis quota from other categories acceptable to the Director. (2) a decision or decisions to withhold the applicant's preliminary allocation of quota for restrained textiles to the EEC for the period from the 1st January 1980 to the 31st December 1980 until he surrenders on a permanent basis either of the quota already referred to. Although the applicant originally sought and was granted leave to apply for other relief, namely orders of certiorari and mandamus, counsel for both the applicant and the respondent informed the court at the outset of the hearing that the parties had agreed that the applicant would not proceed with the applications for these orders on the understanding that the Director would abide by the decision of the court on the application for the two declarations. It was on that basis therefore that argument proceeded. The facts on which the application is grounded are that in 1979 the Director, as a result of an investigation carried out by him into the applicant's activities, concluded that in August 1978 the applicant had shipped to and landed in England a quantity of textiles in respect of which he had fraudulently obtained through his agent Hinson Company Ltd. two export licences by falsely declaring Indonesia to be the country of destination. The Director seized from the applicant's business premises a number of documents that clearly showed that on receipt of an order for textile goods from a London importer, the applicant had procured their manufacture in Hong Kong and had them shipped in double packing via Indonesia to London. The outer carton shipping mark displayed a certain name and address in Indonesia, whilst the inner carton mark indicated a London address. It was apparent that the object of the double packing was to enable the outer carton to be removed in Indonesia and the goods transhipped to London in the inner carton. Other false documentation purported to show that the origin of the goods was Indonesia. The object of these devices could only be to deceive the relevant Hong Kong and London authorities. After obtaining legal advice, the Director concluded "that a prosecution could not be sustained because of the inherent difficulty of obtaining evidence from outside the jurisdiction and because there was insufficient evidence to establish certain other elements of the offence". The prosecution action that the Director had had in mind was the institution of proceedings under section 36 of the Import and Export Ordinance (Cap. 60) and regulation 4 of the Import and Export (General) Regulations. Notwithstanding his decision not to prosecute the applicant, the Director concluded that the evidence was sufficient to warrant him taking administrative action. In my view, apart from certain technical difficulties, the evidence that the applicant had furnished false information in respect of his applications for the issue of the two export licences and that he had exported the textiles concerned to the United Kingdom other than under and in accordance with a licence, was very cogent. Accordingly, the Director informed the applicant by letter of the outcome of his investigations and that, subject to any representations that the applicant may make within fourteen days of the date of the letter, he proposed to require him to surrender on a permanent basis an amount of 1980 quota equivalent to the quantity of textiles involved in the transhipment, namely, 18,522 pieces of category 8 goods. In response to a letter from the applicant's legal advisers protesting against the Director's proposed action, the Director informed the applicant that he required him to surrender the amount of 1980 quota I have already referred to and that until such surrender was effected the applicant would be refused export licensing facilities, including facilities to transfer out quota, in respect of textiles to the EEC, and that this would take effect as from 1960 and would remain in force for the duration of the current Hong Kong and EEC Textiles Agreement. The Director further informed the applicant that if he was unable to surrender the quota from category 8 goods he would give consideration to the surrender of quota from other categories in lieu of that from category 8. Subsequently the Director notified the applicant that he would accept a joint surrender of the relevant amount of quota from the applicant and Hinson Company Ltd., and that he would leave the matter of apportionment to be determined by the applicant and Hinson. The reason for this decision was that on the evidence before him the Director had formed the view that Hinson Co. Ltd. was jointly responsible with the applicant for the fraudulent obtaining of the two export licences. The Director also informed the applicant that if he and Hinson were unable to surrender quota in the required category, he would consider permanent surrender from other acceptable categories. It was made clear however that until the full amount of quota required had been surrendered on a permanent basis, export licensing facilities for textiles to the EEC would be denied to both parties. In order to understand the rationale of the Director's action it is necessary to comprehend the basic principles of the operation of the quota system. Under a 1977 bilateral agreement on trade in textile products between Hong Kong and the EEC, Hong Kong undertook to control within annual limits its exports of certain textile products to the EEC for a period of five years. The reason for the imposition of these limits was that free and uncontrolled export of Hong Kong textiles had caused market disruption in the EEC countries. In pursuance of it's undertaking Hong Kong imposed controls on the export of textiles by means of a quota control system administered by the Director. Initially, in order to ensure continuity for the trade which had hitherto engaged in free and uncontrolled export of textiles, the limit established under the restraint agreement was apportioned and distributed to exporters and manufacturers who had contributed to the level of export that led to the restraint. This method of apportionment is commonly known as the "allocation on the basis of past performance" rule. Whenever an export restraint agreement is concluded by Hong Kong with an importing country, local exporters are invited to submit returns to the Director showing their shipments of the relevant textile goods to that country during a specified past performance reference period. This period is normally 12 months, but may be 24 months. The total verified amount of past performance is adjusted by the ratio of the reference period to the textile restraint period. Where this adjusted figure is greater than the restraint limit, the limit is apportioned and distributed to exporters in proportion to their past performance. If, on the other hand, the adjusted figure is less than the restraint limit, allocations are made in accordance with the adjusted past performance. Whenever a restraint agreement is renewed or provides for a restraint to be continued for another period, quotas are allocated by the Director in accordance with certain principles that relate to the use by a quota holder of his previous quota holding. Briefly, the principles that the Director observes are that a quota holder who used 95% or more of his quota allocation in the preceding restraint period is regarded as having fully utilised his allocation for that period, and is offered a quota equal to 100% of his allocation in the preceding period plus an additional amount determined by any growth factor provided for in the restraint agreement. If a quota holder used between 50% and 95% of his quota holding in the preceding textile period, he is offered an allocation equal to the amount he used in the preceding period. A quota holder who used less than 50% of his quota holding in the preceding textile period is not offered any quota allocation. Quotas that become available as a result of quota holders not qualifying for a full allocation are added to the pool of unallocated quotas, so that a larger pool of free quota may be created. In addition to the allocation of quota by the Director there is a transfer system of quotas whereby a person with no quota or an insufficient quota in a particular textile category of goods, may acquire it from another person. The object of the transfer system is to encourage maximum utilisation of quotas and to provide flexibility to persons already participating or wishing to participate in the trade. Transfers of quota may be effected either on a temporary or a permanent basis. On occasion, due to market conditions, excessive quotas return to the Director as a result of non user by quota holders. Whenever this occurs the Director does not make a full allocation of the excess to those applicants already in possession of quotas, but also makes it available to applicants without any past performance, that is to say, to newcomers to the business of exporting or manufacturing the goods in the relevant category to which restraints apply and in respect of which the excess has arisen. In operating the export quota control system the Director seeks the advice of the Textiles Advisory Board which is a body that is broadly representative of the Hong Kong textile trade and industry. The 15 members of the Board, apart from the Director, all occupy prominent positions either as textile and garment manufacturers or as exporters. Most of the members also hold highly responsible positions in trade or industrial associations. Their advice to the Director therefore reflects the views of the trade and industry as a whole. Affidavit evidence on behalf of the respondent revealed that since February 1979 the EEC had been pressing the Hong Kong Government to take effective action to devise a monitoring system to prevent transhipment malpractices and to take effective action against those responsible therefor. Pressure had also been excepted by the EEC on Hong Kong to redress the economic damage suffered by it's industry as a consequence of such malpractices. In order to ensure that Hong Kong's negotiating position with the EEC was not undermined and that the latter would not impose unilateral import controls as an alternative to the present voluntary export restraint system - a course of action that would do considerable damage to the entire textiles and clothing industry of Hong Kong and adversely affect the prosperity of Hong Kong - the Director came to the view that it was imperative that administrative action should be taken against those persons responsible for exporting goods to the EEC in circumvention of the quota system. The means by which he proposed to do this was to require culprits to surrender, on a permanent basis, an amount of quota equal to the quantities of goods that were shipped without quota, and that if a culprit did not have the amount of quota required, the Director would refuse him export licensing facilities in respect of textile exports to the EEC for the duration of the Hong Kong and EEC Agreement or until he surrendered either the appropriate required quota or quota for other oategories of goods acceptable to the Director. The Director also proposed to place quotas recovered in this manner in the general quota pool and make them available to the trade. These proposals were put to the Textiles Advisory Board by the Director and were endorsed unanimously. It is in the light of this background that the action of which the applicant complains was taken. The Director contends that he acted in the exercise of a discretion conferred on him by section 3(1) of the Import and Export Ordinance. The sub-section reads as follows
Although at the time of these proceedings the applicant had not yet made an application for an export licence, the Director, in serving notice on the applicant that any application made by him would be refused unless he surrendered the required amount of quota, did so in anticipation that the applicant would apply for a licence. The Director's notification thus had the effect of enabling the applicant, so far as was possible, to avoid committing himself to overseas orders without foreknowledge of the consequences. There was evidence before the court that the market-price for permanent transfer of quota, fluctuating as it does in response to supply and demand, is normally 2½ to 3 times the amount payable for temporary transfer, and that consequently the current market price for the entire amount of quota that the Director has required the applicant and his shipping agent to surrender jointly before they will be granted export licensing facilities is $250,818.75. Although the applicant has an unspecified allocation of category 7 goods in respect of 1980 for Belgium, Netherlands and Luxembers, he does not possess the quantity of 1980 quota that the Director requires him to surrender. In order therefore to meet the Director's demand he must buy quota on the open market. The alternative is to turn to countries other than those in the EEC for markets for the export of textiles. Mr. Ching who appeared for the applicant submitted that the Director is obliged by law to grant an export licence to any person who makes application therefor provided the application is regular and complete on it's face and the applicant is in possession of quota sufficient to meet the quantity of goods for which the licence is sought. Indeed, regulation 5 of the Import and Export (General) Regulations provides that a licence for the export of certain articles, including textiles, to any country in respect of which there is a quota system, shall not be issued unless the applicant is the holder of a valid quota allocation certificate. Mr. Ching concedes however that if the Director is entitled by the exercise of a discretion to refuse such an application then he must be entitled to refuse to grant it unless conditions, including the payment of a penalty, are complied with. Mr. Ching maintained that where a properly signed standard application form containing full and true particulars is submitted to the Director by an applicant, it would be monstrous if the Director, at a whim, could refuse to grant an export licence. Furthermore, he contends that three of the four conditions listed on the reverse side of the standard export licence application form are purely procedural in nature and that the fourth condition merely stipulates the period for which the licence is valid. This, he says, supports the view that non procedural conditions are not contemplated. Such force as this argument may have, is, in my view, greatly dissipated by the introductory words preceding the four stated conditions, namely, "Conditions of issue of this licence include the following:- .........." The conditions actually listed are therefore not exhaustive and I see no reason why it should follow that because three of the four listed conditions are procedural any other conditions that may be imposed must necessarily be procedural in nature. Mr. Ching also argued that the note at the end of the reverse side of the form implies that applications for licences are granted as a matter of course. The note reads as follows "Provided there are no complications the licence will be ready for collection two clear working days (i.e. excluding Sundays and public holidays) after the date upon which the form is received." In my view the words "Provided there are no complications" robs this contention of any real force. Be that as it may, I do not consider that there is any substance in these two arguments as the standard application form is the Director's own administrative form. It is not a statutory form that circumscribes or purports to circumscribe any discretion that may be conferred on him by section 3. In Wong Man-shun v. R.(1) the Court of Appeal considered the legality of the quota system devised by the Director. The Court expressed the view, albeit obiter, that although the Director has no power under the Ordinance to make regulations having the force of law for the imposition or administration of quota controls, there is no objection in law to him devising and promulgating instructions of an administrative nature, governing the creation and administration of a quota allocation scheme. The Court, whilst acknowledging that no quota allocation scheme has been established by the Ordinance or any regulations made thereunder, observed that regulation 5 of the Import and Export (General) Regulations, made by the Governor-in-Council, refers to such a scheme, though it does not define it, and that the regulation can thus properly be said to recognise it's existence. The Court concluded that from this it may be inferred that the Governor-in-Council has given approval to such a scheme being devised outside the framework of the Ordinance. The Court recognised, however, that if at any time the Governor-in-Council saw fit to exercise his powers to make regulations under section 31(1)(q) of the Ordinance, then, to the extent to which the Director's administrative practice conflicted with any such regulations, the administrative practice would cease to be of effect. With great respect I am in agreement with the views expressed by the Court of Appeal. If one accepts that the quota allocation scheme devised by the Director is valid, and that the essence of the scheme is to ensure a fair and equitable distribution of the amount of quota permissible under the Hong Kong and EEC Textiles Agreement, and to protect the interests of the trade in Hong Kong, it seems to me that the Director must have a discretion to issue a licence. I find it difficult to conceive that the Director is bound to grant a licence in circumstances that would clearly be counter to the principles underlying the quota allocation scheme. In taking action such as that taken in the present case, the Director does not act arbitrarily or capriciously. He acts in accordance with a policy approved by the Textiles Advisory Board. Moreover, a specific warning is given on every provisional quota allocation certificate that a person who engages in any malpractice with regard to quota or who falsifies any documentation concerning an export licence application, may have the balance of his quota forfeited and may also be rendered ineligible to receive further allocation of quota. Having been informed by the Director of the nature of the allegations made against him and of the course of action proposed by the Director, the applicant was given an opportunity to make representations as to why that action should not be taken. He was also informed that any representations that he might make would be taken into consideration by the Director in reaching his decision. Mr. Ching cited Sheffield Corporation v. Luxford(2). This was a case in which a county court judge in making an order for possession of a dwelling house not within the provisions of the Rent Restriction Acts purported to exercise a discretion conferred on him under the County Courts Act by postponing its operation for twelve months. On an appeal by the landlords, Talbot J, in referring to the words in section 138 of the County Courts Act 1888, "the judge may order that possession of the premises be given by the defendant to the plaintiff", said at page 183 of the report, "Now it is quite true that the language of the Act is permissive and not compulsory. It has often been said, and it is possibly a convenient abbreviation, but like all inaccurate expressions it often leads to misunderstanding, that in many statutes the word "may" means "must". I think it has been pointed out once for all in Julius v. Bishop of Oxford that that is an inaccurate expression. "May" always means may. "May" is a permissive or enabling expression; but there are cases in which for various reasons, as soon as the person who is within the statute is entrusted with the power it becomes his duty to exercise it. One of these cases is where he is applied to to use the power which the Act gives him in order to enforce the legal right of the applicant. I think this is such a case. On the information before us, the legal right of the plaintiffs, the landlords, was complete as soon as the notice to quit had expired, and the tenants' right to remain in occupation of this house had absolutely ceased. I think it is true to say, as was said by learned counsel for the appellants, that all that induces the landlord to resort to the county court is by the ministry of the court to give effect to his right to possession by force and also to save himself from taking measures for resuming possession; but before that his legal right is complete. That being so, I think that, as soon as the application is made to the judge for an order for possession, the latter being clothed by the Act of Parliament with the power to make such an order, it becomes his duty to make it. And if the Act contained no more than that, it would be his duty to make the order then and there without any qualification". Talbot J then proceeded to deal with the County Court Judge's discretion to postpone the operation of the order for possession for 12 months, and held that such a postponement was not such an exercise of discretion as the Act, in spite of its unlimited terms, contemplated or permitted. Mr. Ching argues that the applicant in the present case has a legal right to demand that an export licence be issued to him and that the Director is under a duty to issue it just as the county court judge was under a duty to make an order for possession in favour of the Sheffield Corporation. To my mind there is a vast difference between the two cases. In the Sheffield Corporation case the plaintiffs had a completed legal right before they resorted to the county court to give effect to it. The applicant here does not have any comparable right. The issuing of export licences and the administration of the quota control system are, in my view, inseparable. The mere fact that an applicant may have acquired sufficient quota, whether it be by way of allocation or purchase, does not confer upon him a right to demand a licence; it merely renders him eligible therefor. It is an integral part of the system and of importance to its fair, equitable and effective operation that where a person has engaged in any form of malpractice with regard to quota or has falsified any material particular in any export licence application, he renders himself liable, at the Director's discretion, to forfeiture of such quota as he may hold and to denial of further allocation of quota. Any such action by the Director would be rendered ineffective if the person concerned could demand that the Director issue him with an export licence. The Director must, of course, act in accordance with the principles of natural justice and give the person an opportunity to be heard. That however is another matter and is not germane to the question whether the Director has a discretion to refuse to issue an export licence to an applicant in the circumstances described. In passing, I think it is worthy of mention that the applicant when given an opportunity to make representations to the Director made no attempt to deny the allegations made against him but merely challenged the Director's right to take the action that he ultimately did take. Mr. Ching also cited the case of Attorney General v. Tsang Kwok-kuen(3) in which the Full Court held that once an applicant for the registration of a motor vehicle had complied with the prescribed requirements for registration he had a right for his vehicle to be registered. Mr. Ching argued that the Director of Trade, Industry and Customs is under a like duty to issue an export licence. It is of significance that in Tsang's case, where regulation 17D of the Road Traffic (Registration and Licensing of Vehicles) Regulations was held to be ultra vires section 4 of the Road Traffic Act, the Solicitor General sought to argue that the registration of a vehicle and the issue of a licence was a privilege and not a right. Rigby C.J. dealt with that argument as follows:-
I will observe at once that there is no provision in the Import and Export Ordinance akin to regulation 6(1) of the Regulations referred to by the learned Chief Justice. On this basis alone Tsang's case is distinguishable from that now before this court. I would add that in Tsang's case the Full Court was concerned with a licensing system simpliciter, not a licensing system that had as it's adjunct a scheme similar in nature to a quota allocation scheme. The difficulty confronted by the courts in cases involving questions as to the existence or otherwise of a discretion or the limits of a discretion is not so much one of recognition of the basic principles of law involved but of the application of those principles to the individual case. Lord Reid in Padfield v. Minister of Agriculture, Fisheries and Food(4) in dealing with the question of whether a statutory provision that conferred a power created a duty to exercise that power, observed at page 1033:-
At page 1053 of the report Lord Pearce cited with approval the following passage from Lord Selbourne's speech in Julius v. Bishop of Oxford:
If the Ordinance contemplates the creation of quota controls, which it clearly does, and if the quota control scheme promulgated by the Director, although not having the force of law, is nevertheless lawful, it seems logical to me, in view of the permissive nature of the wording of subsection (1) of section 3 of the Ordinance, that the Director must have a discretion to refuse to issue an export licence in respect of an application concerning goods that are the subject of the scheme, and that in exercising that discretion he is entitled to take into consideration the objects of the scheme and any rules made thereunder. It has not been argued on behalf of the applicant that the Director has ventured beyond those considerations. I am satisfied that the Director acted within the proper exercise of the discretion conferred on him by the subsection and that he observed the rules of natural justice in giving the applicant an opportunity to make representations. It is with the greatest regret that I find myself in disagreement, albeit respectful disagreement, with my brother Liu. I would not make the declarations sought by the applicant and, accordingly, would dismiss this application.
Representation: Mr. Charles Ching, Q.C. and Mr. Raymond Faulkner (Ronald Wong & Co.) for Applicant. Mr. Barlow and Mr. Polson, Crown Counsel, for the Respondent. (1) (Criminal Appeal 968 of 1979) (2) [1929] 2 K B 180 (3) [1971] HKLR 266 (4) [1968] AC 977 In the Supreme Court Miscellaneous Proceedings 1980 No. 369 Coram: Hon. LIU & Macdougall, JJ. in Court (Full Bench) Dates of hearing - 31.7.80 and 28.8.80. Date of reserving judgment - 28.8.80. Their Lordships took time to consider judgment. Court: Cur. adv. vult.
Opinion of the Full Bench is divided. LIU, J. in his judgment grants the declarations sought whereas Macdougall, J. dissenting.
Representation: Mr. Charles Ching, Q.C. and Mr. Raymond Faulkner (Ronald Wong & Co.) for Applicant. Mr. Barlow and Mr. Polson, Crown Counsel, for the Respondent. Cases cited by Mr. Ching, Q.C. , counsel for the Applicant in his submissions: 1. Wong Man Shun v. R. Crim. App. 968 of 1979 2. Sheffield Corporation v. Luxford (1929) 2 K.B. 180 3. Attorney General v. Tsang Kwok Kuen (1971) HKLR 266 Cases cited by Mr. Barlow, counsel for the Respondent in his submissions: 1. Essex County Council v. Ministry of Housing and Local Government
2. Associated Provincial Picture Houses, Ltd. v. Wednesbury Corp.
3. British Oxygen Co. Ltd. v. Ministry of Technology (1971) A.C. 610. 4. CHAN Yat-san & others v. Attorney General (1975) HKLR 503. 5. Westminister Bank Ltd v. Minister of Housing (1971) A.C. 508. 6. Searle v. Sth. British Insurance Company Limited (1916) NZLR 137. 7. Reg. v. Stcefford Justices (1940) 2 K.B. 33
9. Reg. v. Highgate Justices (1954) 1 WLR 485. Representation: Mr. Charles Ching, Q.C. and Mr. Raymond Faulkner (Ronald Wong & Co.) for Applicant. Mr. Barlow and Mr. Polson, Crown Counsel, for the Respondent. |
Cases cited in this judgment