Attorney General v. Far East Paint Co (A Firm)

HCA000015/1973

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO.15 OF 1973.

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Coram: Pickering, J.

Date of Judgment: 11th July, 1973.

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JUDGMENT

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1. This is an appeal against a decision of a Registrar refusing a stay of execution upon a judgment for possession.

2. The appellant firm has operated dangerous goods godowns upon the land the subject of the order for possession, since 1961, originally as tenant of a Crown licensee but, since 1968, as the direct licensee of the Crown under a permit dated 1st November of that year expressed to be for one year but which has in fact been renewed from time to time since its initial expressed date of expiry. The Crown Land permit contains provision for termination on three months notice by the Crown. Such notice was served upon the appellant firm on the 29th May 1972 and was expressed to expire on the 31st August of that year. The appellant firm having remained in occupation of the land, proceedings in ejectment were taken and, on the 4th April of this year, judgment for possession was given in favour of the Crown. After various adjournments of an application for a stay of execution on the part of the appellant firm, that application was dismissed with costs on the 12th June and the present appeal is against such dismissal.

3. It is the legitimate contention of the Crown that the appellant firm has had since the end of May 1972 to make arrangements to remove itself from this site. It is claimed, however, on behalf of the appellant firm, that its sole proprietor is the holder of necessary licences for the storage of dangerous goods in a godown, said to be one of the most up-to-date in the Colony, erected upon the land the subject of the licence, but not belonging to the Crown; that the value of the stock in the warehouse is of the order of approximately $450,000; that attempts to find alternative accommodation have been unsuccessful because the necessary licences are not granted unless stringent conditions laid down by the Fire Services for the storage of dangerous goods can be met; that an application to build a dangerous goods godown on Lots 1338, 1339 and 1347 in D.D.189 in the New Territories had been unsuccessful because of objections raised by the local villagers; that there are no public godowns in Hong Kong which have the necessary dangerous goods licences to store the goods in question and that unless a stay of execution is granted the appellant firm will have no place to store its dangerous goods; and finally that the appellant firm was unsuccessful in bidding at an industrial Crown land auction on the 28th May last for land suitable for the erection of a godown for the storage of dangerous goods. It was subsequently af irmed on behalf of the appellant firm that it has 20 to 22 skilled workers which the firm would lose if it had to cease operations, and that if the firm loses the dangerous goods godown it will be unable to continue its output of paint (it being one of the seven paint factories in Hong Kong) for any substantial period of time. It is further stated that enquiries from two other godowns had elicited the information that those concerns are not in possession of the necessary licences for the storage of Class 5 dangerous goods. Moreover enquiries have been made of the Crown Land and Survey Office of the Public Works Department as to the possibility of acquiring land suitable for the erection of a dangerous goods godown and it is said that the Crown Land and Survey Office are looking into the matter.

4. It will thus be seen that there have been serious efforts on the part of the appellant firm to obtain alternative accommodation suitable for licensing for the storage of dangerous goods. The matter is, of course, considerably complicated by the nature of the firm's trade and the necessity for such licences. Mr. Haldane, for the Crown, complains that there is no evidence that the appellant firm has run down its business so as to divest itself of its stock. That is a harsh expectation. For, whilst the appellant firm has its obligations in regard to the storage of dangerous goods, so too, has the Crown - and the Crown's obligations are not merely moral but also legal. The legal obligation exists, not towards the appellant firm, as against whom they are entitled to possession, but to the public at large. It is in the interests of the public that the Crown insists that dangerous goods be stored only in premises suitable for their reception and storage and duly licensed as such. And if the Crown wishes to resume land utilised for such a purpose for more than a decade, the Crown has an obligation to the public to ensure that the licensee from whom the land is to be resumed, is not put in a position in which he may be compelled, in breach of the law, to store dangerous goods in unsuitable premises, to the peril of the public.

5. Yet there is not a tittle of evidence to the effect that the Crown has done anything to assist the appellant firm to find suitable accommodation for its dangerous stocks.

6. The Crown holds virtually all the cards and it is for the Crown to be realistic, in the interests of the public, about the nature of the premises with which it is dealing.

7. In all the circumstances, I adjourn this application for three months. The purpose of the adjournment is to enable the Crown to be able to assure me that there is available, or has been made available, alternative accommodation in which the appellant firm can lawfully store its products. There will be liberty to the Crown to apply to restore this application upon an earlier date, if such assurance is available before the expiration of three months. During that period it will also be incumbent upon the appellant firm to take energetic steps, in conjunction with the authorities concerned, to obtain alternative licensed accommodation.

Representation:

Haldane, C.C. for Plaintiff (Respondent).

R. Tang (H.H. Lau & W.S. Lo) for Defendant (Appellant).