Re Hong Kong Hunters' Association Ltd

Case No.HCMP 57/1980

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCMP000057/1980

Wild Animals Protection Ordinance, Cap. 170

-- Application for Review, etc. on blanket refusal of Licensing Authority to issue and renew game licences -- Wrong Exercise of Discretion by Director of Agriculture & Fisheries as Licensing Authority under the Ordinance.

IN THE HIGH COURT OF JUSTICE

	MISCELLANEOUS PROCEEDINGS
	NO. 57 OF 1980

	In the matter of
	an application by the Hong Kong Hunters' Association Ltd., for leave to apply for Judicial Review of the refusal of the Director of Agriculture and Fisheries Department to renew and/or issue game licences and for Orders of Certiorari and Mandamus and for a declaration that the said decision of the said Director is contrary to law
	and
	In the matter of Section 14 of Wild Animals Protection Ordinance Cap. 170

Coram: Li and Garcia, JJ. in Court

Date of Judgment: 8th February, 1980

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JUDGMENT

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Li, J. :-

1. This is a motion by the Hong Kong Hunters' Association Ltd., made pursuant to leave granted by this Court seeking (i) a review of a decision of the Director of Agriculture & Fisheries Department to discontinue the issue and renewal of game licences under the Wild Animals Protection Ordinance Cap. 170 (ii) an Order of Certiorari to quash the said decision; (iii) an Order of Mandamus to the Director requiring him to issue and renew game licences to members of the Hong Kong Hunters' Association in accordance with the said Ordinance and (iv) a declaration that the said decision of the Director is contrary to law. In the course of the hearing, learned counsel for the applicants informed the Court that Crown Counsel had, on behalf of the Director, given an understanding that should a declaration be made in the terms of the motion, the Director will act in accordance with such declaration thereby avoiding the necessity of making either an Order of Certiorari or of Mandamus, or both. This undertaking considerably shortens the proceedings and this Court fully appreciates the cooperation which exists between counsel and the course is one which has been properly taken. Under the provisions of the Wild Animals Protection Ordinance Cap. 170, the Director of Agriculture & Fisheries is constituted a Licensing Authority being empowered to issue game licences under Section 14 of the Ordinance. Section 14(1) provides as follows:-

" The licensing authority may, on application made to him in Form 1 of the Seventh Schedule and on payment of the fee prescribed in the Eighth Schedule, issue a game licence in Form 2 of the Seventh Schedule."

Subsection (3) of the same section provides that:-

" A game licence shall be valid for one year from the date on which it is issued."

2. In accordance with those provisions, game licences had been issued in the past on an annual basis on different dates. Sometime in December, 1979 some of those licences expired and applications were made for their renewal. Such applications were refused without any explanation being furnished by the Director although the applicants were informed that a circular letter would be addressed to all licence holders. This statement appears in the affirmation of Mr. Shany Au, the Hon. Secretary of the Hong Kong Hunters' Association Ltd. dated the 18th January, 1980. Mr. Au's affirmation states that the Executive Council made a decision on the 4th December, 1979 with the intention of banning all forms of game hunting in Hong Kong. This decision was confirmed in the letter exhibited as SA-1 in Mr. Au's affirmation. The letter, which was written on behalf of the Director, is rather short and is as follows:-

"	Dear Sir,
	I am directed to inform you that the issue of game licences has been discontinued. This following a recent decision by the Executive Council that game hunting should be prohibited. Current licences will remain valid until their normal expiry date or until the law is amended depending on which date is sooner."

3. The grounds for the present motion are:-

	(1)	that the Director being the authority invested with the power, discretion and duty to issue game licences in accordance with the provisions of the said Ordinance, has not carried out his functions at all;
	(2)	by purporting to refuse the issue of any such licences, he has, in fact, not exercised his discretion at all nor did he perform his duty;
	(3)	that the Director's decision not to renew or grant any game licence appeared to have been founded on a directive given to him by the Executive Council and as such he had not exercised any discretion at all. In fact, if he had exercised any discretion at all he so exercised it contrary to law.

We would add that since the Director communicated his decision of 4th December, 1979 to existing licence holders no amendment to the relevant law had been made to date.

4. The complaint of the applicant is that the Director has failed to perform his duty according to law, has failed to exercise his discretion according to law and his refusal to issue game licences as before, is wrong. The Director has filed an affidavit in reply asking the Court not to make the Declaration sought in the motion, and in para. 3 of his affidavit which is dated the 2nd February this year, he says that:-

"	3. The issuing of game hunting licences has been a matter of increasing concern to the licensing authority since the passing of the Wild Animals Protection Ordinance in that as the law operates at present the areas in which hunting is permissible have constantly decreased to the point where there are now relatively few areas left and correspondingly the licensed hunters are more concentrated acre for acre than at any time previously.
	4. The licensing authority further had in mind the ever increasing numbers of people visiting the New Territories for recreational purposes and whose safety is inevitably at greater risk so long as these trends continue.
	5. By early 1979 the situation had reached such a state that the Director of Agriculture and Fisheries began active steps to consider the abolition of game hunting in Hong Kong.
	6. The Secretary for the New Territories and the Commissioner of Police both recommended the abolition of game hunting and the views of the Hong Kong Hunters' Association were considered in a petition received in June 1979.
	7. On the 4th December 1979 the Executive Council advised and the Acting Governor ordered that game hunting should be prohibited and that appropriate amendments should be made to the Wild Animals Protection Ordinance. As a result, drafting instructions were sent out to give effect to this decision.
	8. Against this background the licensing authority felt that this was an appropriate time to reconsider the whole question of the exercise of his discretion over the issuing renewal and revocation of game licences under the Wild Animals Protection Ordinance. He came to the conclusion that the overriding consideration was that of public safety and accordingly the number of game licences should be immediately reduced.
	9. Although no now licences had been issued since May 1976, natural wastage had not produced a significant reduction in the number of game licences held. In the exercise of his discretion he decided that applications for game licences which come up on a day to day basis for renewal for a year should, with effect from the 9th December, be refused which would thus effect a steady reduction in the number of game licences in force. It was considered that no scheme could accommodate all the conflicting considerations but that this approach was the best in the circumstances.
	10. The possibility of the law not being amended as ordered by the Governor in Council was not considered great enough to justify delaying an immediate reduction in the number of game licences hold along the lines set out above."

5. It is against this background and those explanations that the Director contends that he had exercised his discretion in refusing to issue further game licences.

6. Counsel for the Crown contends that one must distinguish the non-exercise of a discretion from that of allowing a policy decision to guide the exercise of a discretion. He argues strongly and forcefully that in the present case it was a policy decision that guided the Director's exercise of discretion, and in such circumstances the Director has acted properly and in accordance with the provisions of the Wild Animals Protection Ordinance, Cap. 170.

7. The Director's affidavit is self evident. It is quite obvious that from beginning to end his intention is to ban all hunting in Hong Kong. His was the motivating force in seeking the directive referred to. In so doing he obviously had the support of the Secretary for the New Territories as well as of the Commissioner of Police. The wording of the Executive Council's decision is most unfortunate. I repeat it again. The Acting Governor ordered that game hunting be prohibited and that appropriate amendments should be made to the Wild Animals Protection Ordinance. It appears to us that the order was putting "the cart before the horse". This Court has no jurisdiction to suggest what directive should be given by the Governor-in-Council, but can only interpret the law as it stands. However, it would have been easy for the Executive Council to direct that the Wild Animals Protection Ordinance should forthwith be amended so as to prohibit all hunting in Hong Kong but this was not done. As it was, their present directive put the Director of Agriculture & Fisheries in a most invidious position. In his capacity as such Director he must perform his duty in accordance with that directive. In his capacity as licensing authority he must exercise his discretion independently and judicially to the best of his ability in accordance with the provisions of the Ordinance. His was the motivating force in suggesting this prohibition. He could hardly have known that he obtained something far more than he had bargained for. He sincerely believed that his motives were justified in the circumstances and we can only say he is correct in such belief. However, we regret to say that he has not exercised his discretion because he felt his discretion was fettered by the directive of the Executive Council and he has indicated generally that he would not renew any hunting licences. It is contended that the exercise of a discretion, guided by an adopted policy, is lawful and right provided that the policy is formulated by the legislature and by parliament. In this we distinguish the case of Rex v Port of London Authority because the facts are different. In that case the Port of London Authority was vested with power "to develop the ports of London, consider the state of the River Thames and the accommodation afforded in the Port of London and to take such steps as they may consider necessary for the improvement thereof and for these purposes they are enabled to construct, equip, maintain or manage any docks, quays, wharves and jetties etc. , by the Port of London Act 1908." The same authority - the Port Authority - was empowered to grant to any owner of land adjoining the Thames licences to make any dock etc. In other words, the Port of London Authority had not only the discretion to allow other people to build docks and jetties etc. along the Thames but was in effect itself empowered to develop the Port of London. The Director in the present case is required to exercise his discretion to issue the licences in accordance with the provisions of the Wild Animals Protection Ordinance. The present case is also distinguishable from the case of Boyle or Walsh v. Wilson in (1907) A.C. 45. In that case the licensing court had considered that they should reduce the number of licensed premises after receiving representations from the public. They sat and considered the pursuer's application before refusing the licence. In the present case the Director has not done the same. The Director has quite clearly, frankly and honestly said that no one whose game licence has expired would have such licence renewed. That is a general, blank refusal to consider any application once the licence has expired. We are led to the case of Rex v. London County Council in (1918) 1 K.B. 69 which has been cited to us, and in which Darling J. as he then was said:-

"It has been laid down that the body on whom is conferred the jurisdiction of granting such licences must hear each application on its merits and cannot come to a general resolution to refuse a licence to everybody who does not conform to some particular requirement."

Later he said that

"The prosecutrix is a person who wishes to sell a book without committing an offence. She has a right to ask the Council for their consent. The Council refuse to hear her application. They have passed a general rule to the effect that no one shall sell books in the parks."

8. In the same affirmation, Mr. Shany Au deposed to another matter. As late as 27th December, 1979, an application to renew a game licence was submitted with the requisite fee to the Director, and a receipt was issued therefor. On the said receipt, a provisional licence number was allocated to the applicant, and it would appear that by doing so, the Director had an intention of renewing the said licence. However, he has put a blanket refusal on renewing or issuing licences and this part of the affirmation, we suspect, was deposed in order to question the honesty and truthfulness of the statements made by the Director in his affirmation. However, we feel that as is often the case with large Departments, the limbs do not know where the head intends to turn. We have no doubt that the Director acted honestly but without the requisite information being conveyed to him, otherwise he would have referred to this matter in his affidavit.

9. We are of the opinion that, despite the laudable motives of the Director, and that public safety would justify the amendment of the law as a matter of course, we find that we are unable to support his decision. We therefore hold that the Director has failed to exercise his discretion under Section 14 of the Ordinance thereby acting contrary to the provisions of the law. In the result, we make the declaration sought by the applicant on this motion.

Representation:

Mr. M. Lee, Q.C. and A. Fung (T.M. Chow & Co.) for applicant

Mr. S.N. Westbrook (Legal Department) for Crown