Wong Wing-tim Thomas v. Attorney General

HCA002134/1975

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Coram: Yang, J.

Date of Judgment: 18 July 1979

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JUDGMENT

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1. In this case the plaintiff asks for a number of declarations the effect of which is to entitle him to register and license six New Territories Taxis and/or Public Light Buses. He also claims damages for not having been given permission to register and license those vehicles.

2. The plaintiff was in 1961 the sole proprietor of Tim's Taxi Company. On 23rd January, 1961 the Traffic Office of the Police Department informed the plaintiff by letter (p.2)^* that "authority is now given to register and license six 9-seater New Territories Taxis (this is subject to final inspection of the vehicles when they are available for registration and licensing)." It is the plaintiff's contention that this letter, commonly described as a letter of authorization, gave him a continuing right to operate New Territories Taxis in the future.

3. Between February and June 1961 the plaintiff registered and licensed six New Territories Taxis and went into business.

4. On 4th May, 1964, the plaintiff informed the Traffic Office that he had sold three of his vehicles, viz. AB 4314, AB 4315 and AB 4316, "without the taxi licences" to a Mr. LEE Yuk, and he enclosed the relevant "licence books for cancellation" (p.7). The Traffic Office cancelled the registration of these three vehicles on 12th May, 1964 and re-registered them as Dual Purpose Vehicles on the same day (pp.62-64). This the Traffic Office had the power to do, under Reg. 11(2)(b) of the Road Traffic (Registration and Licensing of Vehicles) Regulations, 1956. The plaintiff's case is that he had also sent the "licence discs" of the three vehicles to the Traffic Office for "safe custody" so as to retain his right to operate New Territories Taxis when the new vehicles he had ordered for replacement arrived. In short he intended to have the licences of the three vehicles held in abeyance by the Traffic Office pending the arrival of new vehicles.

5. On 28th October, 1965, the plaintiff informed the Traffic Office that he had sold the remaining three vehicles, viz. AB 4317, AB 4318 and AB 4319, to a Mr. YUEN Kui "without the taxi licences" (p.8). On this occasion the relevant registration books were not enclosed, so the Traffic Office wrote to the plaintiff on 5th November, 1965 asking him to arrange for the forms for the transfer of ownership to be completed in accordance with Reg. 11(p.9). Official records (pp.65-67) show that the registration of AB 4317 was cancelled on 16th December, 1965 and re-registered as a Dual Purpose Vehicle on the same day, the registration of AB 4318 was cancelled on 10th January, 1966 and re-registered as a Dual Purpose Vehicle also on the same day, and the registration of AB 4319 was cancelled on 1st December, 1965 and re-registered as a New Territories Taxi on the same day. It is in my judgment a fair assumption that the relevant registration books must have been sent by the plaintiff to the Traffic Office in accordance with the latter's letter of the 5th November, 1965 before the cancellations took place. The plaintiff's intention on this occasion was again to retain his right to operate New Territories Taxis in future.

6. On the plaintiff's own evidence, he had in fact gone out of business by 28th October, 1965. By May 1966 he "decided not to go on with the business" but nevertheless "wanted to hold on to the licences." On 30th May, 1966 he wrote to the Traffic Office (p.10) informing them that "my firm has decided to withdraw all our vehicles temporarily from service but your Department will be informed when we intend to resume service." Upon receipt of this letter, the Traffic Office noted: "Confirmed all vehicles cancelled. Re-check of accommodation and maintenance should be made prior to approval of registration of new vehicles" (p.10).

7. Though the plaintiff was the first Chairman of the New Territories Taxi Owners Association established in 1962, he was no longer a member of the Association by June 1966 when he neither owned nor operated any New Territories Taxis.

8. On 12th May, 1967 there was a meeting between the Commissioner for Transport (whose office had on or about 26th October, 1965 been created to take over matters previously dealt with by the Traffic Office), representatives of the New Territories Taxi Owners Association, the Chairman of the Transport Advisory Committee and some other persons. The plaintiff, not being a member of the Association on that date, did not attend the meeting. After hearing views from all concerned the Commissioner agreed, inter alia, to allow replacement vehicles for existing 9-seater New Territories Taxis as and when required. This approval would also have retrospective effect for three months, i.e., licences which had been allowed to lapse for three months would be cancelled and would not be renewed in respect of replacement vehicles (p.11). It will be noted that this meeting took place some two and a half years after the plaintiff and gone out of business and that the resolution at the meeting related to licences only, not registration. In any event, the Commissioner did not assume statutory responsibility for registration and licensing of vehicles till 9th June, 1967.

9. On 16th May, 1968 the Commissioner informed all owners of New Territories Taxis of the three-month policy with immediate effect (p.12). The plaintiff did not receive such a communication because he was not then an owner.

10. On 20th January, 1969, some three and a quarter years after the plaintiff had gone out of business, he wrote to the office of the Commissioner for Transport, referring to his letter of 28th October, 1965, and said he would like to resume the service of his taxis, namely AB 4314, AB 4315, AB 4316, AB4317, AB 4318 and AB 4319 (p.13).

11. On 25th January, 1969 the Commissioner replied by letter in the following terms (p.14):

12. Then followed a series of correspondence between the plaintiff and the Commissioner for Transport (pp.15-17) whereby the plaintiff said he did not know, and had never been informed, that the licences of his taxis had been cancelled. The Commissioner replied that the licences were regarded as cancelled because they had been unlicensed for over two years. The Commissioner also relied on the policy agreed on at the meeting of 12th May, 1967 as regards licences which had lapsed for three months (supra).

13. On 14th February, 1969, the Commissioner for the first time expressly relied on Reg. 6(c) of the Road Traffic (Taxis, Public Omnibuses and Public Cars) Regulations 1964 and said in his letter to the plaintiff (p.19):

Under the circumstances, I regret that I cannot alter the decision conveyed to you in my letter of 3rd February, 1969."

14. On 27th February, 1969, the plaintiff wrote in protest (p.20) and on 7th March, 1969 the Commissioner wrote in reply, again relying on the three-month policy (p.22).

15. On 1st September, 1969 by virtue of legislative amendments, all operating mini-buses, including New Territories Taxis, were allowed to apply to re-register as Public Light Buses. Public Light Buses therefore came into being as a new class of vehicles and New Territories Taxis ceased as a class of vehicles. It is therefore incorrect for the plaintiff to plead in para. 6 of his Amended Statement of Claim that the Commissioner cancelled the New Territories Taxis as a class of vehicles and/or re-classified New Territories Taxis as Public Light Buses.

16. Between 8th October, 1974 and 16th December, 1974 the plaintiff's solicitors made applications on behalf of the plaintiff to the Commissioner for the registration and licensing of six Public Light Buses in place of the six New Territories Taxi licences, but met with no success (pp.41, 44 and 45).

17. Referring to the Commissioner's refusal dated 25th January, 1969, the meeting of 12th May, 1969, and the legislative amendments of 1st September, 1969 mentioned above, the plaintiff now complains that the Commissioner was wrong in refusing to register and license the vehicles in favour of the plaintiff. It will be noted that the plaintiff does not make any complaint about the cancellations of the registration of the six New Territories Taxis in 1965 and 1966 (pp.62-67). It is common ground between the parties that on cancellation of registration the licence ceases to be effective.

18. The facts stated above come within the purview of paras. 2 to 9 of the Amended Statement of Claim.

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19. Under para. 9 sub-paras. (a) and (b) of the Amended Statement of Claim the plaintiff pleaded that the Commissioner's conduct was in breach of the terms of the letter of authorization dated 23rd January, 1961 and an infringement or derogation of the right purported to have been granted to the plaintiff by that letter. The nature of such a letter was explained in Cheung Kung Wing v. Attorney General⁽¹⁾ and Leung Chow Public Car Co. v. Attorney General⁽²⁾. The letter was an indication to the plaintiff that his application was likely to succed and simply gave the plaintiff the right to seek application and an assurance that he would succeed if all conditions were complied with. The assurance was intended to be acted upon and therefore binding on the Commissioner (Robertson v. Minister of Pensions⁽³⁾). In the present case the plaintiff did succeed in his application and had six vehicles registered and licensed as New Territories Taxis. But the letter of authorization was not intended to give the plaintiff a perpetual right to have vehicles registered and licensed as New Territories Taxis. The letter of authorization did not and could not survive the plaintiff's business. When he wished to start business again in January 1969, his position was exactly the same as any applicant who hoped to start a business for the first time. On the facts, it is difficult to see how he could have enjoyed a position more privileged than that of the ordinary applicant.

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20. Under para. 9 sub-para. (c) of the Amended Statement of Claim, four points were argued on behalf of the plaintiff:

21. On Points (i) and (ii), though it had been conceded by the Crown in Cheung Kung Wing v. Attorney General (supra, at p.21) that the Commissioner had no power arbitrarily to refuse to license New Territories Taxis, no such concession was made in this case. Inspite of the concession made in the other case, in my judgment, the Commissioner had the power to make the policy decision of refusing an application where a licence had lapsed for a period of not more than three months. In R. v. Liverpool Corporation⁽⁴⁾, Lord Denning gave the following example:

"... suppose the corporation proposed to reduce the number of taxicabs from 300 to 200, it would be their duty to hear the taxicab owners' association: because their members would be greatly affected. They would certainly be persons aggrieved. Likewise suppose the corporation propose to increase the number of taxicabs from 300 to 350 or 400 or more: it is the duty of the corporation to hear those affected before coming to a decision adverse to their interests."

22. The Commissioner did consult all interested parties. In my view he had acted properly. In any case the Commissioner does not have the power automatically to license an unknown vehicle or unregistered vehicle.

23. On Point (iii), the three-month policy applied to vehicles the licences of which had lapsed for three months or more. The plaintiff's application was not a case of lapsed licences, but one where the registration as well as the licence had been properly cancelled. Where the registration ceases to exist, so does the licence. The Commissioner's letters of the 25th January, 1969 (p.14, supra) and 3rd February, 1969 (p.16, supra) gave at least two reasons for his inability to approve the plaintiff's application, viz., firstly, the licences had expired for more than three months, and secondly, the plaintiff's taxis had already been "cancelled" for over two years.

24. On the second reason, I should at this stage refer to a practice which was common amongst owners of New Territories Taxis prior to 1968. The practice was that where an owner sold his taxi, he was permitted by Government to use the licence of that taxi for his new vehicle, provided that the licence had not expired for more than two years, and that the relevant registration was still in force. If both the registration and the licence of the taxi which the owner had sold were no longer in force, then he would have to make a fresh application for the registration and licensing of the new vehicle. But in such a case it would not be necessary for him to be given another letter of authorization. This was, of course, assuming that he was still running a New Territories Taxi business. This is but commonsense. In the present case, the plaintiff's taxis were sold but both the registration and licences of these vehicles were cancelled. And he also ceased business altogether. The plaintiff could not take advantage of this practice in any event. If I understood the plaintiff's case correctly, there has been no suggestion that the Commissioner was estopped or precluded from relying on Reg. 6(c) of the 1964 Regulations in his letter of 14th February, 1969 (p.19, supra). And para. 9 sub-para. (c) of the Amended Statement of Claim does not say that he was so estopped or precluded. The Commissioner's letter of 25th January, 1969 (p.14 supra) said that "no additional N.T. taxi licences have been issued for some considerable time and no exceptions can be made", which is some indication that the Commissioner was relying on Reg. 6(c), at least impliedly. In my judgment Point (iii) must also fail.

25. As to Point (iv), no acceptable argument has been advanced to show that Reg. 6(c) was ultra vires (cf. Reg. 17A(1) of the current Road Traffic (Registration and Licensing of Vehicles) Regulations which has been held to be ultra vires in Leung Chow Public Car Co. v. Attorney General, supra, at p.8, as having given "a wholly unfettered and general discretion" to the Commissioner to refuse to register or license a vehicle.)

26. Point (v) is irrelevant, for it has not been argued by the Commissioner that he is now relying on Regs. 15, 16 and/or 18.

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27. I next come to para. 9 sub-para. (d) of the Amended Statement of Claim, which pleads a breach of the rule of natural justice in that the plaintiff was not given any or any fair hearing in (i) the cancellation or purported cancellation of his six New Territories Taxis; (ii) the refusal to allow the plaintiff to register and license six Public Light Buses or re-register and re-license six New Territories Taxis; (iii) the change of policy by the Commissioner to disallow replacement of New Territories Taxis the licences of which had expired for more than three months. These arguments may be disposed of quite shortly. Point (i) is incorrectly stated, for there was no "cancellation of taxis" as such. There was instead a legislative amendment whereby New Territories Taxis as a class of vehicles ceased to exist. The cancellations of the registration of the plaintiff's six vehicles in 1965 and 1966 were never the subject of any complaint. Point (ii) may be answered by the Commissioner's reliance on Reg. 6(c) of the 1964 Regulations. The Commissioner had not acted unreasonably or ultra vires: see Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation⁽⁵⁾. Nor had he deprived the plaintiff of his livelihood, nor was the plaintiff's property at stake, and it must be remembered that the plaintiff had already gone out of business and it was therefore not a man who had some right or interest, or some legitimate expectation (see Breen v. A.E.U.⁽⁶⁾) In any event the Commissioner was not here exercising a judicial or quasi-judicial function, so the audi alteram partem rule did not apply.

28. On Point (iii), it has already been shown the parties whose legitimate interests were affected by the policy had been heard.

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29. I now come to my findings of facts in relation to paras. 9A and 9B of the Amended Statement of Claim.

30. On 11th July, 1969 the Commissioner wrote (p.29) in reply to the plaintiff's enquiry of 3rd July, 1969 (p.28) in these words:

"With reference to your recent application, it is proposed that the new Public Light Bus Licences will be offered in the first instance to owners of Dual Purpose Vehicles, Nine Seater Private Cars and N.T. Taxis. If it is decided to extend the offer, suitable public announcements will be made. I regret therefore that I cannot accept your application at present."

31. On 5th August, 1969 the plaintiff wrote to the Commissioner signifying his intentions to register his six New Territories Taxi licences as Public Light Bus licences (p.30). On 9th August, 1969, the Commissioner wrote in reply (p.35):

32. On 12th November, 1969 the plaintiff wrote back and threatened legal actions (p.36). Nothing of interest took place until 23rd February, 1973 when the Commissioner informed all those who were registered owners of New Territories Taxis as on 31st August, 1969 (of whom the plaintiff was not one) that consideration would be given to those owners whose applications for Public Light Bus licences had once been refused (p.38).

33. It may also be noted that by Gazette Notice 420 of 21st February, 1975 the Commissioner limited to a maximum of 4,331 the number of vehicles that might be registered or licensed as Public Light Buses (p.46), and by Gazette Notice 1065 of 21st May, 1976, which superceded the 1975 notice, the maximum number was limited at 4,350 vehicles. The plaintiff claims that the Gazette Notices were mala fide in that they were issued with a view to defeat the claims of those people in similar position as the plaintiff. There not being prima facie evidence that the Commissioner had not acted bona fide, the plaintiff's allegation must fail (R. v. Governor of Brixton Prison⁽⁷⁾). Furthermore, as McMullin J. said in Attorney General v. Wong Kwong Shing⁽⁸⁾:

"... Although no doubt the Commissioner himself is the author of the limitation he is not the author of the law which enables him to impose the limitation. It would be unfair and improper to assume that in choosing the maximum figure he was acting with anything other than due deliberation or that he had inadequately addressed himself to the needs of the situation. For the purposes of the argument it must be assumed that that figure represented the best approximation to the traffic requirements at the time of publication, arrived at by use of the special knowledge and expertise with the Commissioner's possession."

See also Leung Chow Public Car Co. v. Attorney General, supra, at p.3.

34. It is argued on behalf of the plaintiff that in the light of the Commissioner's letters of 11th July, 1969 (p.29) and 9th August, 1969 (p.35), the Commissioner should have sent the plaintiff a letter similar to the one of 23rd February, 1973 which he sent to other persons (p.38), because the letter constituted an extension of the Commissioner's offer. The letter of 23rd February, 1973 does not in my view constitute a true extension of the Commissioner's offer. The offer was by that letter made only to those who were registered owners of New Territories Taxis on 31st August, 1969, of whom the plaintiff was not one. It was an offer made to a very limited class of persons. The two letters of 1969 show that the Commissioner had decided to offer Public Light Bus licences to owners of currently licensed Minibus Type Vehicles. So it may well be argued that by the letter of 23rd February, 1973 the Commissioner had made a limited extension of his offer. This however does not help the plaintiff's case, for it must be commonsense that public announcements were necessary and desirable only if the offer was extended to the public at large. Where an offer was extended to a limited and well-defined class of persons, letters of offer sent direct to those persons would be far more effective. A public announcement in the circumstances would not only be otiose but useless as far as the plaintiff was concerned.

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35. It is now necessary to deal with the facts in support of para. 10 of the Amended Statement of Claim, which pleads that the Commissioner was in breach of an oral agreement made between himself and the plaintiff.

36. It is not disputed that on 3rd June, 1969 the Commissioner and the plaintiff held a meeting at the Commissioner's office. The Particulars of para. 10 of the Amended Statement of Claim aver:

37. According to the plaintiff's evidence, he asked the Commissioner to register and license six New Territories Taxis but the Commissioner said that soon there would be "a change from N.T. Taxis to PLBs." Eventually the Commissioner agreed to allow the plaintiff to register and license three New Territories Taxis. No legal action was ever mentioned. On 5th June, 1969 the Commissioner confirmed by letter that he was unable to allow the plaintiff to license any New Territories Taxis (p.26). In the plaintiff's letter to the Commissioner dated 11th June, 1969 (p.26), again no legal action was mentioned. Nor did plaintiff refer to the Commissioner's alleged promise to allow him to license three New Territories Taxis. I am satisfied on the balance of probability and on the correspondence that the Commissioner did not make the promise which the plaintiff says he made, nor was there any consideration moving from the plaintiff not to take legal action against the Commissioner. The plaintiff's claim based on breach of agreement must fail.

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38. The plaintiff also pleads the Commissioner's conversion or abrogation of the plaintiff's property or rights. No argument was addressed to this Court under this head. This is therefore not a live issue. In any event it is difficult to see how the plaintiff could succeed on this claim.

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39. It is part of the Crown's case that the plaintiff being guilty of delay, his claim cannot succeed. Delay simpliciter is not a sufficient ground for dismissing a claim. I am not satisfied that the plaintiff was guilty of the kind of delay which entitled the Crown to treat the plaintiff as having slept on his rights if any (R. v. Aston University⁽⁹⁾; Ng Kee v. Attorney General⁽¹⁰⁾).

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40. The Crown also argued that the plaintiff never submitted a proper application form for the registration and licensing of his vehicles. This point is misconceived. There has all along been a practice recognised by the Crown that an applicant would first obtain an indication from the relevant traffic authority that his application was likely to succeed before he would incur expenses in purchasing the vehicles. It was, as a practice, after the applicant had obtained a letter of authorization that he would make purchases and send in the proper application forms. The practice, having been acted on for a long time, must be binding on the Commissioner (Lever Finance v. Westminster⁽¹¹⁾).

41. The plaintiff's claim is dismissed with costs.

Representation:

Mr. Edward K.S. Chan (Cheng & Lam) for Plaintiff

Mr. McCallough, Crown Counsel for Defendant

(1) Civil Action 1541/1974, unreported, at pp.26-27.

(2) M.P. 749/1976, unreported, at p.10.

(3) (1949) 1 K.B. 227, 230, 231-232.

(4) (1972) 2 Q.B. 299, 308.

(5) (1948) 1 K.B. 223.

(6) (1971) 2 Q.B. 175, per Lord Denning at p.191 A to C.

(7) (1963) 2 Q.B. 246.

(8) Civil Appeal 58/1975, unreported (at pp.3-4).

(9) (1969) 2 Q.B. 538, 555.

(10) (1977) H.K.L.R. 587, 591-592.

(11) (1971) 1 Q.B. 222, 229G-230H.