Man Yee Transport Bus Co Ltd v. Transport Tribunal and Another

HCAL 122/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 122 OF 2008

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Before : Hon A Cheung J in Court

Date of Hearing : 23 October 2008

Date of Judgment : 23 October 2008

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J U D G M E N T

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1.The applicant was the owner of a public bus bearing registration mark JW 8464, in respect of which the applicant held a passenger service licence no 7857A.

2.According to surveillance conducted by the Transport Department, the bus was found to be providing unauthorised bus services from Sham Tseng to Causeway Bay on 2 August 2006 and 15 September 2006 respectively, in contravention of conditions 9 and 10 of the passenger service licence and conditions 2 and 13 of the licensing conditions for a non-franchised bus in respect of the bus.

3.After an inquiry, the Commissioner for Transport decided that the passenger service licence and the vehicle licence of the bus should be cancelled.  However, as the applicant had by then already disposed of JW 8464, the Commissioner decided to impose the cancellation on another public bus bearing registration mark JM 3653 also owned by the applicant, with effect from 15 June 2007. 

4.Dissatisfied with the Commissioner’s decision, the applicant sought a review of the decision by the Transport Tribunal.

5.The Transport Tribunal heard the matter on 15 July 2008.  At the conclusion of the hearing, the Tribunal decided to uphold the Commissioner’s decision of cancellation but varied the effective date of cancellation to 1 September 2008.

6.The Commissioner for Transport decided to implement the order of the Transport Tribunal on 11 September 2008. 

7.The applicant now seeks leave to apply for judicial review to challenge the decision of the Transport Tribunal as well as the decision of the Commissioner for Transport to implement the former decision.

8.It is now well established that an applicant for leave to apply for judicial review must satisfy the court with satisfactory evidence that he has a reasonably arguable challenge : Po Fun Chan v Winnie Cheung [2008] 1 HKLRD 319.

9.The first and foremost ground put forward by the applicant is that the Commissioner’s decision to cancel the vehicle licence (as opposed to the passenger service licence) of the applicant’s bus, pursuant to s 25(1)(b)(vii) of the Road Traffic Ordinance (Cap 374), is unconstitutional by reason of arts 6 and 105 of the Basic Law.

10.S 25(1)(b)(vii) provides that the Commissioner for Transport may cancel the licence of a motor vehicle if, in the case of a non-franchised public bus, no passenger service licence is in force in respect of the vehicle.  It may be added that under s 52(4), no person shall drive or use a non-franchised public bus or suffer or permit such a vehicle to be driven or used, for the carriage of passengers unless a passenger service licence is in force in respect of the vehicle.

11.Art 6 of the Basic Law provides that the Hong Kong Special Administrative Region shall protect the right of private ownership of property in accordance with law.  Art 105 provides that the Hong Kong Special Administrative Region shall, in accordance with law, protect the right of individuals and legal persons to the acquisition, use, disposal and inheritance of property and their right to compensation for lawful deprivation of their property.

12.In essence, the applicant’s complaint is that cancellation of the relevant bus’ vehicle licence amounts to deprivation of the applicant’s right to own or keep the bus as a motor vehicle and the applicant’s right to its personal property, namely the bus, without compensation.

13.This argument does not even make it to first base.  Deprivation within the meaning of art 105 has been explained by the Court of Appeal in the recent case of Fine Tower Associates Ltd v Town Planning Board [2008] 1 HKLRD 553 (leave to appeal to the Court of Final Appeal has been refused: FAMV 20/2008, 8 September 2008).  In that case, which concerned restrictions on use of two pieces of land imposed by an outline zoning plan, the Court explained that deprivation may occur where the interference with use of the property is so substantial that the owner is deprived of any meaningful use of the property, or in other words, all economically viable use.  The burden of establishing removal of all meaningful or economically viable use resides with the party asserting a violation of art 105.  The Court, in that case, rejected the landowner’s challenges based on art 105 because the landowner could not establish that it had lost all economically viable use of the land.  Amongst other reasons given by the Court, the landowner could always sell the land for value (para 26).

14.Likewise, in the present case, although without a vehicle licence, the applicant cannot use the bus on the roads in Hong Kong, this does not mean that it has lost all meaningful or economically viable use of the vehicle.  First, it could be sold for good value as a second-hand bus.  There is no suggestion in the evidence to the contrary.  Moreover, unlike a piece of land, the bus may also be used elsewhere by the applicant subject to the applicant’s fulfilling the relevant importation and licensing requirements of the place where it intends to use the bus. 

15.In those circumstances, there is no deprivation within the meaning of art 105.  Art 6 does not add anything to the applicant’s argument.

16.For this reason, the applicant’s constitutional challenge against s 25(1)(b)(vii) fails, and there is no need to consider the contention any further.

17.It is then contended that the bus services provided on 2 August 2006 and 15 September 2006 did not contravene condition 1 of the passenger service licence.  This is a surprising contention.  It is plain from the notes of proceedings of the Transport Tribunal (to which I will return) that no such contention was ever raised before the Tribunal.  In fact, so far as the evidence before the Court is concerned, no such argument was ever put forward at the s 30 inquiry or before the Commissioner for Transport.

18.Furthermore, apart from one single paragraph in the Form 86A, there is nothing in the papers filed with the court to substantiate the contention.

19.In any event, the contention is plainly bad.  The licence in question clearly set out the ‘Types of Service Permitted’, namely, A06 for scheduled services, and A01, A02, A03, A04 and A08 for non-scheduled services.  The bus services from Sham Tseng to Causeway Bay are not said to have fallen within any of the permitted services, leaving aside the applicant’s argument based on A08 which I will come to later.

20.There was therefore plainly a contravention of the licence provisions governing the terms of service that were permitted to be rendered.  There was thus a clear breach of condition 9, which provided that no bus service other than those permitted by the licence should be operated by the licensee. 

21.Condition 1, on a proper reading of the provisions and conditions in the licence, applies to a case where the licensee wishes to operate a new service or to vary a service already approved.  It does not qualify or put a gloss on the ‘Types of Service Permitted’ clearly set out in the licence. Certainly it does not give the licensee 2 days of ‘licence holiday’ in every period of 30 days.

22.The applicant’s present contention is without merit.

23.Then it is argued that the services provided on the two days in question were provided by a hirer of the bus from the applicant, and as such the bus was being used for A08 purposes, A08 being a service ‘for renting bus for customers for fixed fees’.

24.Again, this is an argument which was never run before the Commissioner or the Tribunal.  It is equally bad.  No doubt, the licence permitted the applicant to rent out the bus for customers for fixed fees.  But the licence could not be taken to mean that whilst under the use of the hirer, the hirer could make use of the bus to provide any bus services other than that permitted under the licence.  Otherwise, the permitted services in the licence would be easily avoided or rendered wholly meaningless by the simple devise of hiring out the bus to a hirer to operate the bus for whatever services the hirer would like to provide.  That cannot possibly be right.

25.The applicant says that the Tribunal wrongly recorded in its notes of proceedings that the applicant’s representative had admitted in the proceedings before the Tribunal that the applicant had breached the relevant conditions in the licence.  The applicant now denies that its representative has ever made the concession.

26.The applicant also complains that the Tribunal has not kept the audio recording of the proceedings and has not got any transcript of the recording.  The applicant says that all this is ‘unreasonable and suspicious’.

27.I find the contention surprising.  What is in issue is not whether the Tribunal has kept proper record of the proceedings (and I am not, for a moment, suggesting that the Tribunal has not done so).  What is in issue is whether the applicant has breached the relevant provisions and conditions in the licence.  What is of secondary importance is whether the applicant’s representative has conceded before the Tribunal that the applicant has breached those provisions and conditions. 

28.The burden is clearly on the applicant to place satisfactory and sufficient evidence before the Court to establish a reasonably arguable case that the applicant has not breached the relevant provisions and conditions.  And when that question turns on facts, the question of whether the applicant’s representative has made a concession before the Tribunal that the applicant has breached the relevant provisions and conditions assumes some significance.  It is for the applicant to place before the Court satisfactory and sufficient evidence to explain that apparent concession.

29.Here, the notes of proceedings clearly refer to the applicant’s representative making the relevant concession in the proceedings.  The burden is really on the applicant to explain that away.  Apart from a bald assertion on affirmation, there is really no concrete evidence from the applicant to substantiate its allegation, which by common experience is a very surprising one.  The notes of proceedings refer to a letter dated 14 May 2008 from the applicant which set out the grounds of review it relied on and which clearly suggested that the applicant was not disputing liability.  The response by the Transport Department to the applicant’s letter, as is recorded in the notes of proceedings, confirmed that impression.  It is incumbent upon the applicant to place that letter of 14 May 2008 and other relevant correspondence before the Court and explain why such a letter was written in the first place.

30.It is quite unacceptable for the applicant now to simply allege that the Tribunal has wrongly proceeded on the basis that the applicant has conceded liability at the hearing and that the notes of proceedings prepared by the Tribunal are inaccurate or wrong in this regard.  Such an allegation ought not to be made without concrete evidence to substantiate it.

31.For all these reasons, the application for leave must be refused.  I so order, with no order as to costs.

Mr James Y K Tze, instructed by Michael Pang & Co, for the applicant