Cheng Kam Hung v. Attorney General

HCA001692A/1974

Administrative law - Applications to Commissioner of Transport for registration and licensing of public light buses - Road Traffic (Registration and Licensing of Vehicles) Regulations - Prerequisite of ownership of vehicles - Whether in entertaining applications Commissioner to apply law as it stood at the time of the applications or as it stands at the time he considers them - Declarations - Delay.

On the 10th July 1974, the plaintiff caused his solicitors to write to the Commissioner of Transport demanding the registration and licensing of 200 public light buses. When the Commissioner failed to comply with this demand, the plaintiff issued a writ on the 16th July 1974, contending the Commissioner was acting ultra vires the Road traffic (Registration. & Licensing of Vehicles) Regulations. Neither at the time of the solicitors' letter, nor at the time of the issue of the writ was the plaintiff the owner of the public light buses for which he sought registration and licensing. The plaintiff, who conceded there was 5 years inexcusable delay in getting the action to trial, sought declarations that the Commissioner had acted ultra vires and that the Commissioner should entertain the plaintiff's applications on their merits as at the 18th July 1974. As at the 18th July 1974, it was within the Commissioner's power to determine how many public light buses should be registered and licensed, but subsequently the law was changed so that the Governor in Council now determines that.

Held, refusing the declarations,

BETWEEN

Coram: Hon. Rhind, J.

Date: 27th October, 1983

__________

JUDGMENT

__________

1. Since 1969, the Commissioner of Transport ("the Commissioner") has had a policy of issuing public light bus licences only in exchange for licences which had existed in respect of the obsolete classes of vehicles known as New Territories taxis and dual purpose vehicles. This was known as the exchange policy. To that policy there were exceptions. The Commissioner did, for example, grant licences to allow the start up of a public light bus service for the Peak without any exchange requirement. Likewise, the Commissioner was prepared to countenance the issue of unexchanged licences to allow, new services of public light buses to come into being for the purpose of ferrying tourists around the Colony.

2. That there were exceptions to the Commissioners exchange policy is, however a topic which requires no further exploration on the view I take of the problem which has come to court.

3. On the 10th July 1974, the plaintiff, who does not claim to have had any licences to exchange, caused his solicitor to write to the Commissioner, demanding the issue of 200 public light bus licences.

4. I set out that letter:

"On the instructions of our client Mr. Cheng Kam Hung of Shing Fat Motors we hereby apply for the licensing and registration of 200 Public Light Buses.

5. True to form, the Commissioner was not prepared to grant the licences demanded. As threatened, the plaintiff duly issued his writ. That was on the 16th July 1974.

6. Now over nine years later, the plaintiff comes into court, asking for declarations that the Commissioner's policy of not issuing more licences was ultra vires, and that the plaintiff is entitled to have his application for the registration of and licensing of 200 public light buses considered on its merits by the Commissioner as at the 18th July 1974. The full text of the declarations sought before me is to be found in paragraphs (a) and (b) of the prayer for relief, together with a last minute addition which should be (h).

7. The short answer to the whole of the plaintiff's claim is that he is completely lacking in locus standi. He was not the owner of any of the two hundred vehicles when his solicitors wrote their letter of the 10th July 1974, nor when they issued the writ on the 16th July 1974. Only owners are entitled to have applications for the registration and licensing of vehicles entertained. That has been abundantly clear since the Court of Appeal's judgment in Ho Choi Yim Fong v. A.G.⁽¹⁾  Now w there is the privy Council's decision of the 7th October 1982 in Leung Chow Public Car Company v. A.G. ⁽²⁾ to precisely the same effect. The legislation impelling those courts to the conclusion they reached is the Road Traffic (Registration and Licensing of Vehicles) Regulations.

8. Regulations 4 and 19 are as follows:

Provided that the Commissioner may refuse to license a motor vehicle for a period of four months.

9. There is simply no way the plaintiff can cure the fatal defect of not having been the owner. An argument was, however, mounted in an endeavour to outflank the requirement that only owners can validly apply for registration and licensing

10. Those two much abused concepts, estoppel and waiver, were the planks on which the plaintiff's counsel sought to extricate his client from the wreckage of a frankly hopeless case.

11. Insofar as I was able to follow subtleties involved, the arguments appeared to go something like this. Because the Commissioner invariably rejected applications by owners, it was pointless being an owner and pointless applying. As the law will not insist on anything pointless, it should not be held against the plaintiff that he was not an owner and did not make a proper application. Moreover, the Commissioner some-times indicated to people who had not become owners yet that if they became owners he would approve their applications (so called "Letters of Authori-sation" and "Committed Vacancies"). This amounted to a representation in effect that it was never necessary to be an owner in order to apply for registration.

12. I do not think a judge needs spend much time on dealing with arguments like that.

13. Nothing was waived as fart as the plaintiff in particular was concerned; nor for that matter could the ownership requirement be waived generally as far as anyone else was concerned, even had the Commissioner been so minded, as the law only empowers him to register and licence owners. Barnett Brothers (Taxis) Ltd. v. Davies, ⁽³⁾ a case in contract, shared no features of the case before me.

14. Estoppel is again a complete non-starter. As explained in Western Fish Products Ltd. v. Penwith District Council, ⁽⁴⁾ the two Town Planning decisions of Wells v. Minister of Housing and Local Government ⁽⁵⁾and Lever Finance Ltd. v. Westminister (City) London Borough Council ⁽⁶⁾ were confined to their own peculiar facts, and fail to see now they are of any assistance to the plaintiff in his highly different situation before me. There is nothing suggestive of anything having been represented to the plaintiff, nor of his having relied on anything emanating from the Commissioner. I do not think I need spell out the obvious difference between the plaintiff and those holders of Letters of Authorisation to whom the Commissioner actually made repre-sentations. In any event, even those with positive indications from the Commissioner that their applications would be approved had no entitle-ment to registration unless they had satisfied all necessary preconditions: See Leung Chow Public Car Company (a firm) v. A.G.⁽⁷⁾

15. Lack of ownership is by itself quite sufficient to give the plaintiff's case its quietus. Not wishing to waste too much time on over-kill, I do not intend to say more than a few words about some of the other equally terminal features of the plaintiff's case.

16. No application was made for registration in the prescribed form (T.D. 22S (Revised)); no fee of ten dollars per vehicle accompanied any application; there was no application signed by the owner or by some person duly authorised by him in writing. All of those are requirements of Regulation 4. All are pre-conditions of a valid application for registration, in my view. The omission of any of them is by itself fatal.

17. Equally massive failures to comply with the licensing provision, Regulation 19, are also present.

18. Further, the plaintiff has not satisfied the requirements of Regulation 5 of the Road. Traffic (Taxis, Public Omnibuses, Public Light Buses and Public Cars) Regulations.

19. I set out Regulation 5: "

"5 (1)         The Authority shall not issue a vehicle licence in respect of a motor vehicle as a taxi, as a public omnibus, as a public light bus or as a public car in accordance with the provisions of the Road traffic (Registration and Licensing of Vehicles) Regulations unless he is satisfied that:

20. No foundation has been laid by the plaintiff for me to embark on an exercise to consider whether the Commissioner's policy and whether any Regulation in those far-off days were ultra vires. Legal historians apart, no one would engage in such an exercise of raking over old coals unless it might result in some positive advantage to the plaintiff.

21. The first two declarations sought by the plaintiff do not by themselves produce any practical effect and are of a type which it is anathema for judges to grant. They are simply empty declarations. Perhaps they are meant to be a prelude to the declaration which should be (h), namely that the plaintiff is entitled to have his application considered on its merits by the Commissioner as at the 18th July 1974. Even if the plaintiff were right about the contentions in respect of which he seeks the declarations (a) and (b), I see no prospect of his getting a de declaration in terms of (h).

22. No court is going to make an order which contemplates that the Commissioner should be expected to consider an application on its merits as at the 18th July 1974. The Commissioner's public duty is to apply the law now as it is in 1983, and I would regard it as nothing short of grotesque to expect hire to participate in some time - warp exercise. If any authority is needed on this, see another recent Privy Council Appeal from Hong Kong, A.G. v. Firebird Ltd., ⁽⁸⁾ which illustrates the concept I of rights in public law and rights in private law developed in cases like O'Reilly v. Mackman⁽⁹⁾ and Cocks v. Thanet District Council. ⁽¹⁰⁾ Any entitlement of the plaintiff to have his applications entertained is obviously a right in public law. That entails a corresponding duty on the Commissioner in public law, such duty being plainly to apply the law as it is, not as it was.

23. Unfortunately for the plaintiff, unlike in 1974, the Commissioner now no longer has any say on how many public light bus licences should be granted. The Governor in Council now decides that by a resolution, which is followed by a notice in the Gazette. There is no indication of any vacancies in respect of unissued licences. It is inconceivable that any court could see its way to declaring that applications for 200 or any other number of licences should be considered.

24. Lastly there is the matter of delay. There are at least five years of unexplained delay on the plaintiff's part. There is more than a little irony in the fact that the court's attitude towards delay in matters involving public law has changed markedly since 1974. Statutory recognition of the need for speedy challenge to administrative decisions is now to be found, in 0.53 r 4. Judges of the calibre of Lord Diplock have gone on record in favour of quick resort to the courts for the resolution of disputes relating to matters of public administration. In O'Reilly v Mackman,^(9a) he had this to say:

"The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any, longer period than is absolutely necessary in fairness to the person affected by the decision".

Elsewhere in that judgment he makes observations to similar effect.

25. The winds of change have blown hard since the decision of Ng Kee v. A.G.⁽¹¹⁾   Nowadays, the application in that case would have to be for judicial review, and someone is Ng Kee's position would have scant prospect of even surviving the filtering mechanism of 0.53 r.3.

26. To my mind, the laws new intolerance towards delay is wholly beneficient, and has my wholehearted support. I would regard it as bordering on the scandalous that anyone should be allowed to come to court in 1983 to request the untangling of an alleged administrative error of which he knew in 1974. Delay of that magnitude is a strong enough reason by itself for refusing a discretionary remedy like a declaration.

27. It was suggested on behalf of the plaintiff that the defendant was really in no position to complain too strongly about delay, as it had always been open to the defendant to hasten the action along if that was what the defendant wanted. The answer to that is that even in the more common type of litigation involving disputes merely as to private rights there is no general obligation on a defendant under the adversary system to hasten the action along. Diplock L.J., (as he then was) had this to say in the landmark decision of Allen v. McAlpine ⁽¹²⁾ at page 555:

"It is thus inherent in an adversary system which relies exclusively on the parties to an action to take whatever procedural steps appear to them to be expedient to advance their own case, that the defendant, instead of spurring the plaintiff to proceed to trial, can with propriety, wait until he can successfully apply to the court to dismiss the plaintiff's action for want of prosecution on the ground that so long a time has elapsed since the events alleged to constitute the cause of action that there is a substantial risk that a fair trial of the issues will not be possible".

28. Austin Securities Ltd. v. Northgate & English Stores Ltd.⁽¹³⁾ in no way represents a departure from what was said in Allen v. McAlpine, ⁽¹²⁾ but was r simply a case where the defendant company, through its liquidator, had in fact contributed to the delay.

29. There is nothing in Austin Securities Ltd. v. Northgate & English Stores Ltd.⁽¹³⁾ to detract from the law's particular intolerance towards delay where administrative decisions are being impugned.

30. The plaintiff's claim is thoroughly bad, and the declarations he seeks are refused for the myriad reasons I have expressed.

(1)     (1978) Civil Appeal No. 69

(2)     (1981) Privy Council Appeal No. 30

(3)    (1966) 1 W.L.R. 1334

(4)    (1981) 2 All E.R. 204

(5)    (1967) 1 W.L.R. 1000

(6)    (1971) 1 Q.B. 222

(7)    (1976) M. P. 749

(8)    (1982) Privy Council Appeal No. 17

(9)    (1982) 3 All E.R. 1124, HL.

(9a)   (1982) 3 All E.R. 1124, HL. at page 1131(a)

(10)  (1982) 3 All E.R. 1136, HL.

(11)  (1977) H.K.L.R. 587

(12)  (1968) 1 All E.R. 543

(13) (1969) 1 W.L.R. 529

Representation:

Mr. Conrad Seagroatt Q.C. and Mr. Mok Yeuk Chi (John Ip & Co.) for plaintiff

Mr. Peter Graham S. C. C. and Mr. Alfred Chow C. C. (Legal Dept.) for defendant