Re Ng Kwok Hung
Read the full judgment text of HCMP 881/1980 on BabelCite. This High Court CFI judgment.
1. We heard this application for judicial review on the 10th and 11th November 1980 at the end of which we dismissed the application with costs and said we will give our reasons later.
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HCMP000881/1980
----------------- Coram: Zimmern, Penlington & Liu, JJ. Date of Judgment: 11th November, 1980 ----------------- DECISION ----------------- Zimmern, J.: 1. We heard this application for judicial review on the 10th and 11th November 1980 at the end of which we dismissed the application with costs and said we will give our reasons later. 2. I now give my reasons. This was an application pursuant to leave for an order of certiorari to quash the decision of the Commissioner for Transport refusing to register 12 motor vehicles as New Territories Taxis on the application of the applicant herein and of mandamus directed to the Commissioner to compel to consider fresh applications by the applicant. 3. The facts are simple. Sometime in August this year the applicant applied to the Commissioner for Transport for registration of 12 specific motor vehicles as New Territories Taxis. For the purpose of argument on the construction of the Road Traffic Ordinance and regulations made thereunder, I am prepared to accept that the applicant had complied with all the formalities called for by the Ordinance. By a letter dated 15th August 1980 Crown Counsel on the instructions of the Commissioner informed the applicant that the Commissioner had decided prior to the application that future registration of New Territories taxis would be by tender in accordance with Regulation 4 of the Road Traffic (public Service Vehicles) Regulations and that his application would be returned. 4. The ground for the judicial review was that under Section 7D of the Ordinance the Commissioner was bound to register the vehicles on application. 5. The parties were agreed that the Governor in Council had by notice in the Gazette under Section 7E(1) of the Ordinance limited the number of New Territories taxis which might at any time be registered and that at the time of the application the number so registered was 12 below the limit. 6. Section 7D(3) of the Ordinance provides:
This is an enabling section empowering the Commissioner to register motor vehicles at the same time imposing a duty on him to register motor vehicle on application in accordance with the Ordinance. That duty is mandatory but subject to the Ordinance. 7. Section 4(1) of the Ordinance enables the Governor in Council to make regulations for the registration of inter alia taxis and making registration subject to tender at a tendered premium or otherwise. It has made regulations. Reg. 4 of the Road Traffic (Public Service Vehicles) Regulations reads:-
8. Mr. Martin Lee leading counsel for the applicant submitted that Regulation 4 only gave the Commissioner a limited discretion. Until he has actually called for tenders under (b) and he has not at material time and up to the date of hearing he was bound to process applications and register if they complied with the provisions of the Ordinance. He said that Regulation 4 lays down quite specifically the manner in which he must register taxis. He must do either (a) or (b), or (c) if applicable. But he has no power not to do any one of the three. Mr. Lee also went into regulations which have been repealed but I found the exercise of no assistance to me. 9. I was unable to accept Mr. Lee's forceful and ingenious submissions on the construction of Regulation 4. In my view this regulation gave the Commissioner a discretion and an alternative which he did not otherwise have, that is to register taxis by way of application in the prescribed manner or by calling for tenders. I could not and cannot construe it to mean that the Commissioner shall register taxis on application unless he has called for tenders as Mr. Lee wanted us to do. The regulation permits him to refuse to process applications by reason that in the exercise of his discretion he has decided at any time being to register by calling for tenders and no time limit is imposed on when he is bound to call for tenders. In my view the Commissioner acted within his powers in this matter. 10. There was a point of interest argued by Crown Counsel. If, he said we were to find that the Commissioner had no power to refuse the applications for the reasons given he would say that the applications were not in order in that the applicant at material time was not the owner of the 12 vehicles for which registration was sought. The contracts covering the 12 vehicles were produced. 11. Regulation 4(1) of the Road Traffic (Registration and Licensing of Vehicles) Regulations provides:-
Mr. McCallough submitted that the word "owner" means true owner and on the contracts produced the applicant was not the true owner of the 12 taxis. This meaning of the word has been the subject of argument before the Court of Appeal in Ho Choi Yim-fong trading as Sai Kit Public Car Service Company (Civil Appeal 1978 No. 69). In view of our decision we did not have to determine this issue but if called upon I would have respectfully followed the reasoning and conclusion, obiter though it was, of McMullin J.A. and I quote:-
However on the contracts I have grave doubts if the applicant had the right to call for delivery of 12 specific vehicles but I do not have to decide the point. Representation: IN THE SUPREME COURT OF HONG KONG MISCELLANEOUS PROCEEDINGS No. 881 OF 1980 -----------------
Coram: Penlington, J. Date of judgment: 11th November 1980 ----------------- JUDGMENT ----------------- 12. The facts of this matter are fully set out in the Judgment of Liu and Zimmern J.J. and I will not repeat them. It seems to me clear that what the appellant seeks is for this Court to read Regulation 4 of the Road Traffic (Public Services Vehicles) Regulations as being "The authority shall register taxis" etc instead of "may register taxis" because there is an unfilled quota of New Territories taxis and Section 7D of the Road Traffic Ordinance states that subject to the Provisions of the Ordinance, the Commissioner shall register motor vehicles on application by the owner. He, must, therefore, fill that quota. As he has not called for tenders, the applicant's application must be accepted. 13. Some support for that apparently startling view is contained in R v Metropolitan Police Commissioner exparte Holloway, 1911 2 K.B. 1131. There it was held that when a statute says that an authority "may" issue a licence and goes on to say that an authority "may" issue a licence and goes on to say under what circumstances it shall not do so, the authority must issue a licence unless the grounds for refusal are within those statutory exceptions (in that case being under 21 years of age or being convicted of certain offences). It is clear however that the Court was influenced by the fact that a previous licence had been issued and that the application was one to renew it. The question before the Court therefore dealt with rights of existing licensees. That is not so here. 14. Furthermore Regulation 4 does not lay down any rules as to when the authority shall refuse to grant a licence. In paragraphs (a)(b) and (c) it does say how he shall go about it once he has decided to grant a licence and seems to me that the only fetter on his discretion is the upper limit of 750 New Territories Taxi licences imposed by the Order in Council. He may not exceed that number but I see nothing to support the view that he must issue licences up to the limit prescribed. 15. I would also dismiss the appeal on that ground.
Representation: Mr. Martin Lee & Philip Lee instructed by Lau & Co. for the Applicant Mr. McCallough, Crown Counsel for Crown
Coram: Full Bench. Zimmern, Penlington & Liu, JJ. Date of judgment: 11th November, 1980 ----------------- JUDGMENT ----------------- Liu, J.: 16. On the 30th July, 1976, the Transport Department caused to be published in the South China Morning Post an invitation to apply for New Territories taxi licences. By a Gazette Notice 2290 gazetted on the 15th October, 1976, the Commissioner for Transport set a ceiling on the number of New Territories taxis at 750. Applications received were decided by three ballots, each for 250 licences. 17. For reasons not made known to this court, at the time of the applicant's applications for the registration of twelve vehicles on the 12th August, 1980, twelve New Territories taxi licences out of the gazetted maximum limit of 750 were unissued. The applicant lodged his applications with requisite documentation, apparently all in order save for the assertion that he, the applicant, was then "the owner" of the vehicles particulars whereof had been submitted. The applicant's applications were at all material times the only applications for the remaining twelve vacancies. 18. Prior to the lodging of the applicant's applications, the Commissioner for Transport had decided that the future registration of New Territories taxis was to be by tender in accordance with regulation 4 of the Road Traffic (Public Service Vehicles) Regulations. The applications were returned to the applicant by the Commissioner for Transport with an intimation in the following terms: "When tenders for the right to register New Territories taxis are invited, you will be informed of the necessary details and conditions of tender." It was contended on behalf of the applicant that since the Commissioner had yet to call for tenders to fill the remaining vacancies for New Territories taxis, he was obliged to exercise his statutory power and register the applicant's twelve applications. 19. In counsel's analysis of the majority observations in the case of HO CHOI Yim-fong v. The Attorney General(1), the judgments of which were delivered on the 10th July, 1979, arguments were addressed to us on the question of "ownership" of the vehicles. We were asked to grant an order of Mandamus directed to the Commissioner for Transport to compel him to consider twelve fresh applications as if they had been submitted on the 12th August, 1980. In addition, the applicant prayed for an order of Certiorari to remove into this court for quashing a decision by the Commissioner for Transport to refuse to register the applicant's twelve vehicles on his applications lodged on the 12th August, 1980, a declaration that the said decision of the Commissioner for Transport is contrary to law, damages and costs. 20. Section 7D(2) of the Road Traffic Ordinance requires due registration before the issue of a vehicular licence. It is provided by section 7D(3) that subject to the Road Traffic Ordinance, the Commissioner shall register a vehicle on application. Section 7F enumerates the eventualities in which the Commissioner may refuse to register any vehicle. Section 7E(5) lays down the procedure whereby applicants competing for the available vacancies are to be determined by lot. 21. Regulation 4 of the Road Traffic (Public Service Vehicles) Regulations reads as follows:
22. Regulation 188(3) of the Road Traffic (Registration and Licensing of Vehicles) Regulations has been superceded by section 7E(5) of the Road Traffic Ordinance. 23. Regulations 4A and 4B of the Road Traffic (Public Service Vehicles) Regulations set out the consequences of a call for tenders under regulation 4(b) and failure to register taxis allocated within the specified time after a determination by lot under regulation 4(a) respectively. 24. It was argued by leading counsel for the applicant that unless the Commissioner had called for tenders, and not merely decided to register taxis by tender, he must entertain the applicant's applications and register the vehicles under section 7D(3) in the absence of any other applications competing for the twelve available vacancies and that no determination by lot pursuant to section 7E(5) of the Ordinance and regulation 4(a) of the Road Traffic (Public Service Vehicles) Regulations would be necessary without competing applicants. Such interpretation commended for our consideration is, so submitted leading counsel for the applicant, fortified by the provisions in regulations 4A and 4B of the Road Traffic (Public Service Vehicles) Regulations. It was further urged that regulation 4(a) and regulation 4(b) of the Road Traffic (Public Service Vehicles) Regulations are mutually exclusive. 25. Mutually exclusive they must be when the Commissioner finally comes to select a way for exercising his power of registering taxis. But in my view, that is a far cry from the contended situation that once an application is lodged, all but one of the Commissioner's uncommitted options will be eliminated and he will be left with no alternative mode of performance in the exercise of his power to register taxis under regulation 4 of the Road Traffic (Public Service Vehicles) Regulations. In another words, Mr. Lee submitted that unless the Commissioner had irrevocably committed himself to the alternative mode of performance by calling for tenders under regulation 4(b), he was to be restricted to the manner of exercise under regulation 4(a). This simply cannot be right. moreover, there seems to be no justification for the upsurge of any one mode of performance at any time in preference to all others prescribed by regulation 4. The advocated dominance of the mode of registering taxis in accordance with regulation 4(a) upon the lodging of application was sought to be supported by the tenor of regulation 4A and regulation 4B of the Road Traffic (Public Service Vehicles) Regulations. These provisions deal with some consequences, after the Commissioner has unreservedly committed himself to a course of conduct. A provision setting forth the consequences of one of the selected ways of exercising a statutory power cannot have the effect of pruning down the prescribed options at which that statutory power may be decharged. 26. Section 7D(3) of the Road Traffic Ordinance and regulation 4 of the Road Traffic (Public Service Vehicles) Regulations serve two separate aspects of the same statutory power at different levels. The former is concerned with whether or not to exercise the power and the latter with the manner of exercising it. 27. At p.283 of de Smith on Judicial Review of Administrative Action, these aspects are put in sharp contrast:
28. Even where the mode of exercising a power is not specifically provided for, the executive may still enjoy a discretion "in the manner of exercising it." At pp.284 and 285 of de Smith, the following passages appear:
29. Section 7D(3) creates a statutory power and prescribes conditions for its exercise. Regulation 4 specifies the various manners in which it may be exercised. The enabling section deals with the exercise of a power, and when it falls to be exercisable, regulation 4 elaborates how that power may be discharged. This is not a case for attempting to resolve what kind of power, mandatory or discretionary, the Commissioner has in registering taxis. These proceedings were proceeded with on the basis that the Commissioner would one day register New Territories taxis by a call for tenders. Therefore, whether or not there remains a residual discretion in the Commissioner for Transport to refuse to register taxis for causes other than those set out in section 7F is a question which falls outside our terms of reference on the instant application for judicial review. 30. The real bone of contention is: Before having irrevocably committed himself to a call for tenders, would the Commissioner for Transport enjoy all the alternative modes of performance offered by regulation 4(a) and (b) of the Road Traffic (Public Service Vehicles) Regulations? The same question may be differently posed: Will every means of exercising his power of registering taxis remain open to the Commissioner until he finally commits himself to a particular way of exercising it? 31. Whatever discretion, if any, the Commissioner may have to refuse registration for causes not set out in section 7F, undoubtedly he has a discretion in the manner of exercising that power of registration under regulation 4 of the Road Traffic (Public Service Vehicles) Regulations. The language in regulation 4 is monumentally permissive. But again, whether or not the Commissioner is a depositary of any discretion in the manner of exercising his power of registration is also not directly in issue. The applicant's case is that the Commissioner cannot reap the benefit of registration by tender unless and until he has in fact called for it, and called for it before the submission of any application. 32. In my view, the options under regulation 4 would remain open to him until the implementation of his election. He is only to be excluded from any mode of exercising his power if he has invoked one of the alternatives and irretrievably put it into execution. That is the natural consequence of choosing between alternatives. If the Legislature had intended to disturb so fundamental a common sense concept, express provision could have been made for an earlier elimination of the freedom of choice. In my judgment, before the Commissioner has finally committed himself and thereby brought about the possible statutory consequences under either regulation 4A or regulation 4B of the Road Traffic (Public Service Vehicles) Regulations, all the manners of exercising his power to register taxis would continue to be accessible to him. 33. For these reasons, I find myself at variance with the interpretation ably urged by leading counsel for the applicant. In my view, both alternatives i.e. entertaining applications for registration or calling for tenders with a view to registration were and remain to-day open to the Commissioner for Transport. The Commissioner for Transport was acting properly in returning the applicant's applications particularly after he had decided to call for tenders. He has not implemented his decision, but that would not impair his legal stance. On this ground alone without more, I would dismiss the application for judicial review. 34. The applicant signed a Hire Purchase Agreement dated the 1st August 1980 with the Maryland Finance Limited. Maryland Finance Limited in turn signed an Order with the Crown Motors Limited on the 11th August, 1980. The twelve vehicles in question were all subject to these contracts. Condition 2 of the Order dated the 11th August, 1980 between Crown Motors Limited and Maryland Finance Limited reads as follows:
Condition 1 in the Hire Purchase Agreement between the applicant and Maryland Finance Limited dated the 1st August, 1980 secured to the finance company the right "to sell or otherwise deal with and dispose of the goods in such manner as they may deem fit" upon the applicant's failure to take delivery. 35. Mr. Lee, leading counsel for the applicant, sought to import to the words "vehicle described" the meaning of "vehicles specified". I am not persuaded that that is the proper construction. It is reasonably clear, in my judgment, that no property of the vehicles specified in these contracts had passed; nor was it intended to pass. I take the view that the applicant was not the owner of the specified vehicles at the time of the lodging of his applications on the 12th August, 1980. 36. Regulation 4(1) of the Road Traffic (Registration and Licensing of Vehicles) Regulations is set out below:
37. In HO CHOI Yim-fong v. The Attorney General(1), the Court of Appeal by a majority delivered themselves of considered dicta to the effect that the word "owner" should be construed strictly. I have echoed but not without hesitation, the majority view.(2) It is likewise quite unnecessary for me to determine this issue here. But in addition to the matters already canvassed, it is to be observed that regulation 4(1) of the Road Traffic (Registration and Licensing of Vehicles) Regulations would cause hardly any difficulty in the registration of a private motor car. There is no maximum limit, determination by lot or call for tenders for that category. The mechanical parts of a private motor car are generally expected to be satisfactory and acceptable. A purchaser can fairly and should indeed be required to become a full owner in the strict legal sense before he qualifies to apply for registration. Hardship could arise only when regulation 4 is applied to the other classes of motor vehicles such as taxis which are subject to the uncertainties of the gazetted maximum limit, determination by lot or call for tenders. There is no warrant for the word "owner" in regulation 4 not to be uniformly interpreted in its application to different categories of vehicles. If the Legislature had wished to give an extended or more liberal meaning to "owner", it could easily have said so. There seems to be no justification for a dual interpretation of the word "owner" in the same regulation, strictly for private motor cars but more liberally for other categories such as taxis. 38. Should my understanding of the words "the owner" prove erroneous, the supplier in this case, Crown Motors Limited, had expressly reserved "the right to alter or change prices and specifications of the vehicle described", and the applicant was never endowed with any right, present or future, to ownership of the self-same twelve vehicles submitted for registration. Thus, in any event he had not qualified as the owner even in the more liberal sense. 39. As for the claim for damages, this court is bound by the decision in The Attorney General v. Ng Kee(3), where it was held that a claim for damages against a public official could not succeed unless he had "acted ultra vires with malice or knowledge that he was so acting." 40. In the circumstances, I would dismiss the application with costs to the respondent. Dates of hearing: 10th and 11th November, 1980.
Representation: Mr. Martin Lee, Q.C. and Mr. Philip Lee instructed by Messrs. LAU & Co. for Applicant. Mr. McClough, counsel for the Respondent. (1) Civil Appeal 69 of 1978 (2) High Court Action No. 2882 of 1977, Leung Chow Public Car Co. v. A.G., the judgment of which was delivered by me on 8th May, 1980. (3) 1978 H.K.L.R. 52 |