Christian Kila Matala-mutakwe v. Transport Department

hcmp 1184/2007

in the high court of the

hong kong special administrative region

court of appeal

MISCELLANEOUS PROCEEDINGS NO. 1184 OF 2007

(on an intended appeal from hcal NO. 56 of 2007)

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BETWEEN

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Before : Hon Le Pichon JA in Chambers

Date of Hearing : 11 September 2007

Date of Decision : 11 September 2007

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D E C I S I O N

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1.This is an application for an extension of time to appeal the judgment of Saunders J of 21 May 2007, dismissing the Applicant’s application for leave for judicial review.

2.On 1 June, that is 10 days after judgment was handed down, the Applicant wrote to the judge pointing out that his ground for judicial review had been misunderstood, that the relevant point had not been dealt with by the judge in his judgment.

3.I should briefly deal with the judgment.  The Applicant holds a driver’s licence issued by the Democratic Republic of Congo but now lives in Hong Kong.  He applied for a driver’s licence to drive a motorcycle.  The Democratic Republic of Congo is not listed in the Fourth Schedule and is therefore not, as it were, an approved country under the Road Traffic (Driving Licences) Regulations.  The result of that is that the Applicant is required first to obtain a probationary licence, undergo a driving course, and then pass a driving test although he has 18 years of driving experience.

4.The judge thought that the complaint of the Applicant was that the Democratic Republic of Congo should have been a country listed in the Fourth Schedule.  That, however, was not the complaint because, in fact, the Applicant has obtained a probationary licence and has passed a driving test.  The point of his complaint is really this.  Under section 11 of the Road Traffic (Driving Licences) Regulations, he is not entitled to a full driving licence even after passing the driving test until he has complied with section 12F.  That section requires an applicant for a full driving licence to drive a motorcycle to have held the probationary licence for a period of 12 months and no distinction is made between experienced and non-experienced drivers.  Section 11(1A) was introduced in the year 2000.  Prior to that, a full driving licence would have been issued upon an applicant passing the test.

5.Although the judge appears to have misunderstood the ground for judicial review being made by the Applicant, I do not consider that it would be right to grant an extension of time for him to appeal the decision for this reason:  the complaint is really against section 11 of the Regulations to which I have referred.  There is no basis for saying that that regulation has not been validly passed.  The Legislative Council is empowered to make such laws as it deems appropriate and, for whatever reason, it considered that drivers of motorcycles should have to undergo this period of a year displaying a probationary licence before being issued with a full licence.  That is entirely a matter for the Legislature and within its powers.  Therefore, any challenge to the legality of section 11 is bound to fail.

6.The reason the Applicant is out of time is because he thought the 10 days ran from the date of receipt of Saunders J’s letter of 5 June (written in response to the Applicant’s complaint letter of 1 June) to the effect that he had no power to review his own decision and that the only course for the Applicant was to go to the Court of Appeal.  This resulted in the present application.  Because any judicial review challenge is bound to fail, it would not be right to grant an extension of time.  Accordingly, the application is refused.

Christian Kila Matala-Mutakwe, the Applicant in person