Kam Wing Travel Group Ltd v. Secretary for Justice for Commissioner for Transport

HCAL 105/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 105 OF 2008

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AND

HCAL 106/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 106 OF 2008

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(Heard Together)

Before: Hon A Cheung J in Court

Date of Hearing: 24 September 2008

Date of Judgment: 24 September 2008

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J U D G M E N T

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1.These two applications for leave to apply for judicial review, both taken out by the same applicant raise essentially the same issue.

2.In each case, the applicant, a public bus service provider, has the passenger service licence of a bus it owns cancelled or suspended, following an inquiry held by the Commissioner for Transport pursuant to sections 30 to 32 of the Road Traffic Ordinance (Cap 374).  The Commissioner notified the applicant of his decision by letter dated 12 August 2008.  The letter was sent to the applicant by post, which successfully reached the applicant on 13 August 2008.

3.Section 33(1) of the Ordinance provides that where the Commissioner cancels or suspends a passenger service licence under section 31, the holder of the licence may, “within 21 days of being notified of the decision of the Commissioner”, apply in writing to the Commissioner for a review of the Commissioner’s decision by a Transport Tribunal.

4.The 21-day period expired on 3 September 2008.

5.By a letter dated 3 September 2008, the applicant through its solicitors applied to the Commissioner for a review of his decision by a Transport Tribunal.

6.However, the letter in each case was only delivered to the Commissioner by hand on 4 September 2008.

7.In each case, the Commissioner refused to entertain the application on the ground that it was made out of time.  He further refused the request by the applicant to stay the execution of his decision to cancel/suspend the relevant passenger service licence pending the taking out of an application for judicial review against the Commissioner’s decision refusing a review of his decision by a Transport Tribunal.

8.The applicant now challenges, in each case, the Commissioner’s decision to refuse its application for a review of his decision to cancel/suspend the relevant passenger service licence by a Transport Tribunal.  It also challenges the subsequent refusal by the Commissioner to stay the execution of the cancellation/suspension decision pending the applicant’s application for judicial review against the former refusal.

9.The applicant argues that the decisions are unreasonable and unfair.

10.In my view, the applications for judicial review are, with respect, misconceived.  They proceed on the assumption that the Commissioner has power to extend the time for making an application for review or otherwise to entertain a late application for review.

11.It is plain and the applicant accepts that the applications for review were made out of time, albeit by one day only.

12.Section 33(1) lays down a time limit of 21 days to make the application for review.  Neither that section nor any other provisions in the Ordinance provide for any power on the part of the Commissioner to extend the time for making an application or to entertain late applications.

13.Section 72 of the Interpretation and General Clauses Ordinance (Cap 1) provides that:

“Where in any Ordinance a time is prescribed for doing any act or taking any proceeding and power is given to a court, public body, public officer or other authority to extend such time, then the power may be exercised by the court, public body, public officer or other authority although the application for the same is not made until after the expiration of the time prescribed.”

14.That section does not assist the applicant for the simple reason that the Ordinance simply does not give any power to the Commissioner to extend the time prescribed for making an application for review.

15.In the circumstances, the Commissioner’s decisions not to entertain the applications for review cannot be faulted.

16.That being the case, his refusals to stay the execution of his cancellation/suspension decisions pending the applicant’s applications for judicial review against the former refusals must also be correct.

17.The two applications for leave to apply for judicial review are dismissed with no order as to costs.

Mr Edward S Y Fan, instructed by Cham & Co, for the applicant