Chan Tsat Sam v. The Urban Council

IN THE COURT OF APPEAL

No. 40 of 1987
(Civil)

BETWEEN

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Coram: Hon. Cons V.-P., Hunter, J.A. & Power, J.

Date of Hearing : 8th May, 1987.

Date of Judgment : 8th May, 1987.

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J U D G M E N T

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Hunter, J.A.:

1. This is an appeal from a decision of Jones, J. given on 16th April last, refusing the applicant’s application for judicial review. The facts are very conveniently set out in the learned judge’s judgment.

“The facts reveal that the applicant has been the licensee of Cooked Food Stall No. 9 Tung Choi Street, Mongkok since 1954. On the 9th July 1985 a Removal Order was made by a District Hygiene Superintendent under By-law 34 of the Hawker By-laws 1972. which is now the Hawker (Urban Council) By-laws. The applicant was notified of the order by a letter from the Urban Council dated the 11th July 1985 which reads:-

“Permanent resite of fixed pitches
(Cooked Food Stall No. 9, Tung Choi Street)

I have to inform you that in order to improve the environmental and traffic situation of Tung Choi Street, it will be necessary to resite your stall.

As such, the Urban Council in exercise of the power vested in me under the Public Health and Urban Services Ordinance, Cap. 132 and in accordance with By-law 34 of the Hawker By-laws 1972 request you to move to a new site in Tai Kok Tsui Hawker Bazaar, Canton Road Cooked Food Centre or Mong Kok Road Cooked Food Centre before 27th August 1985 to carry on your business.

A ballot to detemine the exact location of your new site will be held at Room 308, 148 Sai Yee Street, 3/F., Mong Kok, Kowloon on 26th July 1985 at 10:30 a.m. and you are requested to attend the ballot in person, bringing with you this letter, your Hong Kong Identity Card and the fixed pitch hawker licence.

If you fail to take part, the ballot will be held in your absence and a lot drawn on your behalf.”

By-law 34 is made under the provisions of section 83A of what is now the Public Health and Municipal Services Ordinance which reads where relevant as follows:-

“(1) The Authority may make regulations for all or any of the following purposes -

(a) providing for the licensing of hawkers;

(b) …………

(c) restricting or prohibiting hawkers from carrying on business in any special place or area or otherwise than in any specified place or area;

(d) …………

(e) prescribing conditions subject to which licensed hawkers may operate;

(f) …………

(g) providing for the allocation of pitches to licensed hawkers, and for the erection by any such hawkers of stalls thereon, subject to such conditions as the Authority may specify (either generally or in any specific case);

(h) providing for the removal of hawkers and their equipment and commodities;

(i) …………

(j) prescribing fees and charges in respect of licences and in respect of the allocation and use of hawker pitches; and

(k) providing for such other matters as may be necessary for the proper regulation and control of hawkers.”

By-law 34 of the Hawker (Urban Council) By-laws reads as follows:-

“(1) Where the Council serves on a licensee to whom a fixed pitch has been allocated under by-law 33 a notice ordering him to vacate the pitch, he shall comply with the notice within such period as may be specified in it, being a period not less than 15 days from the date of service.

(2 ) At the expiry of the period specified in the notice, the pitch shall, unless the Council otherwise directs; cease to be allocated to the licensee.

(3) If the Council orders a licensee who is the holder of a fixed-pitch hawker licence which authorizes him to deal in drink or cooked food to vacate his pitch permanently, it shall allocate to him another fixed pitch in accordance with by-later 33.

(4) …………

(5) …………

By-law 33, which is relevant provides:-

"(1) Where a licensee is the holder of a fixed-pitch hawker licence which authorizes him to deal in drink or cooked food, the Council shall allocate a fixed pitch to him on payment of the prescribed fee.

(2) …………

(3) …………

Apart from the applicant's stall in Tung Choi Street the Urban Council also served Removal Orders upon four other licensees who operated cooked food stalls in Tung Choi Street. As the applicant was required to vacate his pitch permanently the Urban Council was obliged to allocate him with another pitch having regard to the provisions of By-laws 34(3) and 33(1) to which I have referred. In response to the letter to the applicant to attend the ballot on the 26th July 1985, the applicant attended and drew No. 7 stall in the Canton Road Cooked Food Centre. However, the applicant was not satisfied with the allocation of the new site for on the 31st July 1985 he wrote a letter to the Urban Council, which has been incorrectly described as an appeal against the Removal Order, in which he made a request for an extention of time of two years to allow him to continue to operate his stall in Tung Choi Street. The application was refused and the applicant was asked to vacate his pitch within one month.

On the 21st October 1985 the applicant submitted a petition to UMELCO requesting that the time limit to vacate his pitch be extended. An extension was granted pending the consideration of the petition, but the petition was eventually dismissed on the 11th December 1985 when the applicant was given 15 days in which to vacate. The applicant did not vacate within the time allowed, but wrote to the Urban Council on the 3rd February 1986 requesting a further stay pending a decision by the Review Sub-Committee of the Markets and Street Traders Select Committee. The Markets and Street Traders Select Committee is a committee that is appointed under Standing Order 6 of the Standing Orders of the Urban Council which in turn has authority to appoint a sub-committee which makes recommendations to the Select Committee for ratification. The Sub-committee had, in fact, considered applications on the 25th January 1986 from the four licensees of the other cooked food stalls in Tung Choi Street that the allocation of the new sites to them be withdrawn. Although their applications were refused, they were granted a period of grace for three months. That decision was ratified by the Markets and Street Traders Select Committee on the 19th February 1986. The four licensees have since vacated their pitches. The applicant’s case was dealt with in the same way as the other four licensees, but his request was refused.

On the 26th March 1986 the applicant’s licence to operate the stall was renewed until the 31st March 1987, and has since been renewed for a further 12 months from that date. By a letter dated the 8th May 1986 the applicant requested the Urban Council to relocate his site to the Fa Yuen Street Urban Council complex, but this application was refused. Subsequently a petition was presented by the applicant to the Governor in Council. At this juncture, the appllicant’s case was referred to the Review Sub-committee in order to give the applicant an opportunity to put forward representations. The meeting of the Sub-committee was fixed for the 7th June 1986 when the applicant attended with his son and his solicitor, Mr. Lam. However, as Mr. Lam had not had sufficient time in which to prepare his case, the meeting was adjourned until the 10th June 1986.”

2. On its resumption the sub-committee considered the representations made to it by the applicant and his solicitor, and recommended to the Markets and Street Traders Select Committee that the removal order should be confirmed, and the applicant be required to vacate his stall before 25th July 1986. That decision was ratified by the Markets and Street Traders Select Committee on 25th June. On 23rd July next the Governor declined to intervene. The applicant's solicitors then persuaded the Urban Council to stay its hand pending an application for judicial review. Leave to apply for judicial review was granted on 29th October.

3. The matter came before Jones J. last April with the result that I have already indicated. The relief sought before Jones J. and before this court is two-fold; namely certiorari first to quash the removal order of 11th July 1985, and secondly to quash the decision of the Review Sub-committee. The basic complaint the applicant advances is a failure by the Urban Council to operate the rules of natural justice.

4. I believe that there are 3 relevant principles of law here. The first is that in circumstances like this the obligation of the Urban Council is to act fairly. This simple and more elastic formulation seems to me to have taken root to displace the more rigid older rules of natural justice. I get that proposition 'particularly from the very recent decision of the Privy Council in Attorney General of Hong Kong v. Ng Yuen-shiu(1) : from the decision in O'Reilly v. Mackman(2) cited with approval by the Privy Council: per Lord Diplock at p.275; and most clearly also from the earlier decision of Reg. v. Liverpool Corporation Ex p. Taxi Fleet Operators’ Association(3). There Lord Denning simply say this (p.308):

“In our modern approach they must act fairly.”

And Roskill L.J.

“This court is concerned to see that whatever policy the corporation adopts is adopted after due and fair regard to all the conflicting interests.”

I emphasise the word all because in the circumstances before this court the council had to act fairly both to this applicant and to all stall holders of the same position. This was an important consideration and one which considerably limited its ability to compromise. That is the first principle.

5. The second principle is that where a council has laid down a policy it is perfectly entitled to pursue this policy. But at the same time it must not in the words of Lord Reid in British Oxygen Co. v. Board of Trade(4) at p.625:

“Shut its ears to an application”

The relevant principles here are most clearly summarised in R. v. Secretary of State for the Environment Ex p. Brent London Borough Council(5) starting at p.729. In particular Ackner L.J. giving the decision of the Divisional Court cited with approval from judgment of Lord Denning in Sagnata Investments Ltd. v. Norwich Corporation(6) at 626 where having said that an administrative body is entitled to lay down a policy he goes on:

“The only qualification is that the administrative body must not apply the policy so rigidly as to reject an applicant without hearing what he has to say. It must not ‘shut its ears to an application’, per Lord Reid. The applicant is entitled to put forward reasons, urging that the policy should be changed, or saying that in any case it should not be applied to him. But, so long as the administrative body is ready to hear him and consider what he has to say, it is entitled to apply its general policy to him as to others.”

I think one should bear in mind that the word "hear" does not necessarily mean hear orally. As the Brent LBC decision itself shows, the obligation is to receive and consider representations. They may be received at an oral hearing. Equally they can be received in writing and thereafter considered and answered in writing.

6. The third relevant principle is that in circumstances like this the council is acting as an administrator, through the persons who have laid down and are giving effect to its policy. Words like bias which have been used in this context are in my judgment inapplicable. This is made clear in a decision of the House of Lords in Franklin v. Minister of Town and country Planning(7) in the speech of Lord Thankerton, at page 103, where he says:

“I wish that the use of the word 'bias' should be confined to its proper sphere. Its proper significance, in my opinion, is to denote a departure from the standard of even-handed justice which the law requires from those who occupy judicial office, or those we are commonly regard as holding a quasi-judicial office, such as an arbitrator.”

An administrative body is not in that position as he pointed out. The obligation of an administrator is to see that “his mind is not so foreclosed that he gave no genuine consideration” to the matters which are being presented to him. That recognises that in a case like this when councillors are hearing a disappointed applicant, they are not acting judicially at all. They are not listening with empty minds. Their minds are bound to be biased in one sense in favour of the policy they, have laid down and are implementing. Their obligation is simply to listen sympathetically as to whether it is proper for them in the circumstances to modify the policy in any particular respect in relation to that particular applicant.

7. When applying those principles to this case the first complaint which has been made is that the council did not give this applicant a hearing before serving its removal notice. In my judgment there was no such obligation cast upon this council. What it did in substance was this. No doubt at some council meeting it decided that this policy should be applied to the five stall holders who then had fixed food stalls in this street. That policy was then implemented by the staff who caused the removal notices to be sent. Then eventually the stall holders who made sufficient objection were afforded a hearing before the Review Sub-committee. That seems to me a perfectly fair and appropriate practice to adopt in circumstances like this. I think it more appropriate than trying to have a hearing before serving a notice. It is more practicable. Some stall holders may not want a hearing; may not want to object and may be quite happy with the alternative site they are offered. It is right that the hearing should be considered by a smaller body like a Review Sub-committee which seems to have been set up in part expressly for this particular purpose. My only criticism of the authority in this case is that they did not in fact afford this applicant a hearing, until after he had taken the step of appealing to the Governor. This invited the comment, made before us in the course of this hearing, that the whole thing was window-dressing. I think it was a pity that the hearing did not take place earlier. So the answer for the first point is that there was no obligation upon this authority to grant a hearing before issuing the removal order.

8. Secondly it was said that the hearing was itself unfair; it was biased and the persons conducting the hearing had prejudged the issue. These complaints seem to me not to appreciate the limitations on the council’s function, recognised in the authorities that I have referred to. There have been placed before us very careful minutes of the two meetings which took place: the meeting on 7th June which resulted in the adjournment and the subsequent meeting on 10th June. Those minutes seem to me to show beyond a peradventure that the three council members who participated in those meetings considered every single point which could be urged in relation to this applicant. They listened, as it seems to me, sympathetically to what he had to say, but came to the conclusion that there was no way in which consistent with the policy, there was any modification which could properly be offered to this applicant. In my judgment the councillors cannot be criticised for the way in which they dealt with these matters.

9. In those circumstances the two complaints made to this court are both in my judgment ill-founded, and this appeal accordingly fails.

Cons, V.-P.:

10. I agree entirely with what my Lord has said and I too would dismiss the appeal.

Power, J.A.

11. I also agree.

Albert Yau (m/s Lee, Ng & Lam) for Appellant.

D. Fleming, S.C.C. for Respondent.

(1)  (1983) 2 A.C. 629

(2)  (1983) 2 A.C. 237

(3)  (1972) 2 Q.B. 299

(4)  (1971) A.C. 610

(5)  (1982) 2 W.L.R. 693

(6)  (1971) 2 Q.B. 614

(7)  (1948) A.C. 87