Ho Choi Yim-fong t/a Sai Kit Public Car Service Co v. Attorney General

HCMP000775/1977

IN THE SUPREME COURT OF HONG KONG

MISCELLANEOUS PROCEEDINGS NO. 775 OF 1977

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Coram: Cons, J.

Date of Judgment: 7th June 1978

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JUDGMENT

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1. This matter was argued before me in chambers on an originating summons. I have adjourned my decision into open court because some of the matters discussed may be of general interest to those in the motor transport trade.

2. On the 16th December 1975 the plaintiff, through her solicitors, sent applications to the Commissioner for Transport for registration of twenty new vehicles as public cars. The applications were under the Road Traffic (Registration and Licensing of Vehicles) Regulations. Two days later the Commissioner wrote back rejecting the applications. The reason he gave for doing so was, in effect, that he had no more vacancies for public cars, the permissible maximum number of registrations had already been reached.

3. We know now, some two and a half years later, that the Commissioner was wrong. The maximum had not been reached. The Commissioner had included in his calculations not only those public cars which had actually been registered but also those for which he had committed himself in advance by way of letters of authority. These were documents by which the Commissioner promised that e would register a vehicle if and when it was presented. He should not have counted them.

4. The authority for this is Leung Chow Public Car Co. v. The Attorney General⁽¹⁾ which was decided on the 30th June last year. That case was concerned with public light buses but the principle is valid and counsel for the Commissioner does not challenge it. He argues instead that although the Commissioner was wrong on that particular point, it does not necessarily follow that the plaintiff would have otherwide succeeded in her applications, for the Commissioner did not consider any other matter. In particular counsel refers to Regulation 4:

He contends that the plaintiff was not the owner of the vehicles in question.

5. The contract by which the plaintiff "purchased" the vehicles is in what I take to be the normal printed form of the motor dealer. But it has this curious endorsement:

6. It is clear that the plaintiff never became the owner in the sense in which that word is normally used in relation to the sale of goods. The property was not intended to pass until delivery and payment. Nor did the plaintiff qualify as a "person by whom the vehicle is kept and used". Such a person is included as an owner by section 2 of the Road Traffic Act. Counsel for the plaintiff again relies upon Leung Chow's Case. He tells me that a similar contract was there involved and the learned judge dealt with the situation in this way:

"I do not purport to settle any nice question as to ownership and I would think that on the terms agreed the applicant was justified, at least so far as the purpose of registration was concerned, in regarding himself and representing himself as the owner of 25 vehicles. And I think that the Commissioner would have been justified in so regarding him for that purpose."

Unfortunately full details of the situation are not given in the judgment, although that is not surprising since the case was argued substantially on the issue of "committed vacancies". Ownership was only lightly canvassed. Indeed counsel condemned its introduction as a technical and last ditch stand by the Commissioner, while the learned judge described it as peripheral. In particular it would have been useful now to know whether the applications had been lodged within the time limit allowed by Remark No. 2. Within that period the purchaser has a definite right under the contract; he has a binding agreement in respect of specific vehicles. There is a good probability that true ownership will soon follow. But once that period has expired - as it had in the present case when the applications were lodged - the purchaser's rights are no longer definite. They only attach to specific vehicles if the seller has not by then disposed of those vehicles elsewhere. If the seller has done so, then the purchaser can only look to similar vehicles as and when they might arrive. And even then his rights are "subject to seller's final confirmation" whatever that may mean. I have found it impossible to persuade myself that in these circumstances the purchaser would be justified in regarding or representing himself as an "owner", or that the Commissioner would have to accept him as such.

7. That, however, is not an end to the problem. There is also Regulation 17F:

a motor vehicle, the Commissioner, within seven days of such refusal or cancellation shall cause to be served either personally or by post, upon the owner of the motor vehicle, a notice which -

any motor vehicle."

I assume the object of this regulation is not just to satisfy the applicant's curiosity, but to be fair to him, to give him the opportunity to remedy any defect shown, or if he be not satisfied, to test the quality of the refusal in these courts or by petition to the Governor under Regulation 29A. Therefore having once given his reasons for refusal can the Commissioner subsequently rely upon other unexpressed reasons? His counsel concedes that it would be improper for him to do so, but immediately and, with respect, perhaps somewhat illogically, raises the question of ownership. At first glance it seems only natural that if the Commissioner is required, in the interest of justice, to give his reasons, then he should thereafter be bound by them, otherwise justice may not seem to be done. Yet the corollary does not appear quite so attractive - that an applicant is automatically entitled to be registered once the reason given for refusal is shown to be invalid. That might lead, for example, to the automatic registration of an unroadworthy vehicle. That would not be in the public interest. To be fair, counsel for the plaintiff does not put his case that high. He puts it that she was entitled to have her vehicles registered if "all the conditions as to roadworthiness, etc., are satisfied". In my reading of Regulation 4 ownership is a definite condition of registration. At the time the plaintiff had not satisfied it. Her applications were bound to fail. Of course, that is not the present position. If I were to grant the declarations requested she would have no hesitation in purchasing twenty new vehicles outright. The Commissioner would then register them. But that would be to give her something now to which she was not entitled when she originally asked for it. I cannot conceive that to be a proper course.

8. It is understandable that the plaintiff may feel hard done by. As it was put in Leung Chow's Case

"What the applicant complains of is that he was shut out in limine by the Commissioner in adopting an attitude towards his applications which he was not entitled to take under the law. Had he not ruled them incompetent on policy grounds the Commissioner would then have gone on to consider the other features of the applicant's case and one must suppose that if there had been substance in any of the objections based upon the question of ownership ...... these would simply have been cleared up by an exchange of views by letter or otherwise."

But with every respect I am not certain that it would have been so simple. What should have been the true situation is very much a matter of speculation. Eight of the vehicles had already been registered in the names of other persons. While waiting for replacements for those, and perhaps for others that the seller had also disposed of in the interim, further applicants might have taken up all the remaining vacancies. Or, perhaps, all the vacancies would have already been given to even earlier applicants. However, I could not have refused her application if delay in bringing these proceedings had been the only consideration. A defendant must show more than simple delay: Ng Kee v. Attorney General⁽²⁾. Counsel for the Commissioner puts forward three considerations. Firstly, that recent Government policy is to phase out public cars as a class of vehicles. Secondly, that the registration of 20 public cars in the plaintiff's name would deprive the public revenue of something like $250,000. This is because the registered owners of public cars now have a right under section 4A of the Road Traffic Act to have their cars registered as taxis upon payment of premia far below those recently paid for taxi registrations. Thirdly, that if the plaintiff genuinely wishes to operate a car hire service she can apply for car hire permits under the new Part IIA of the Regulations. The first two considerations might carry weight if there were a substantial difference between the number of public cars actually registered and the maximum permissible. It might be thought that the executive took into account the small number actually on the road when deciding upon its policy or fixing premia and that it might have taken a different view if that number had been substantially higher. But that cannot have been so. The greatest number that could obtain registration in the way attempted here by the plaintiff is 59, against actual registrations of 1,329. As to the third suggested consideration I must confess I do not understand its purport.

9. I should add finally that if it had been appropriate I would have granted a declaration in the form asked for in paragraph 3A of the Amended Summons, that is to be registered in respect of taxis. I am aware that the plaintiff is not a registered owner as section 4A requires, but I would have applied the maxim "equity looks on that as done which ought to be done". Provision would have been made for the various fees payable along the way. However, for the reasons I have just given I find that the plaintiff is entitled to a declaration that the Commissioner was wrong in refusing to consider her applications, but no more.

Representation:

Mr. O.V. Cheung, Q.C., and Mr. K.S. Edward Chan (Hastings & Co.) for the plaintiff.

Mr. Edmonds, Crown Counsel, for the defendant.

(1) Miscellaneous Proceedings No. 749 of 1976

(2) Civil Appeal No. 8 of 1977