Kam Wing Travel Group Ltd v. Secretary for Justice for Commissioner for Transport
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HCAL113/2008 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 113 OF 2008 ----------------------
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---------------------- AND CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 51 OF 2009 ----------------------
---------------------- (HEARD TOGETHER) Before : Hon Poon J in Court Dates of Hearing : 22 July 2009 and 5 March 2010 Date of Judgment : 5 March 2010 ------------------------ J U D G M E N T ------------------------- Introduction 1.The applicant provided public bus service under Passenger Service Licence 11187A granted by the Commissioner of Transport. 2.The applicant committed breaches of the conditions of the PSL as follows :
3.The same public officer appointed by the Commissioner conducted Inquiry Nos.45/2006 and 46/2006 in respect of Instances B and A on 15 December 2006. He then submitted two separate reports to the Commissioner. 4.On 8 June 2007, the Commissioner, after considering the reports and having been satisfied that the applicant had committed the breaches, decided to cancel the PSL for MH3027 and KN312 (“the 1st Decision”) and for LA7500 and LS9354 (“the 2nd Decision”). 5.The applicant then applied for review before the Transport Tribunal against the two Decisions. The reviews against the 1st Decision and 2nd Decision took place on 25 August and 23 September 2008 respectively. The Tribunal upheld the 1st Decision and 2nd Decision on 6 January and 24 February 2009. 6.On 6 March 2009, the applicant wrote to the Commissioner informing him that it intended to apply for judicial review against the 2nd Decision and requested for a stay of the execution of the sanction. By letter dated 17 March 2009, the Commissioner replied that unless the applicant took out the application and the Commissioner was furnished with the grounds of the application for further consideration by 31 March 2009, the Commissioner shall enforce the sanction (“the 3rd Decision”). 7.On 31 July 2007, another public officer conducted Inquiry No.16 of 2007 in respect of Instance C and then submitted a report to the Commissioner. On 5 February 2008, the Commissioner decided to cancel the PSL for LP5232 and MP8960 (“4th Decision”). The Tribunal heard the applicant’s review on 30 June 2009. On 27 August 2009, the Tribunal varied the sanction by suspending the PSL in respect of the only remaining vehicle for 36 months. 8.The applicant applied for judicial review against the 1st Decision in HCAL113/08 and the 2nd and 3rd Decisions in HCAL51/2009. It has not brought any similar application in respect of the 4th Decision. The 1st and 2nd Decisions 9.Under the Road Traffic Ordinance (Cap.374), sanction in respect of a breach of a PSL is a matter for the Commissioner. As the sentencing authority, the Commissioner must impose a sanction which is commensurate with the gravity of the breach and the circumstances of the case before him. He must take into account all the relevant factors, both mitigating and aggravating. 10.The court in the exercise of its supervisory jurisdiction in judicial review will not interfere with the sanction imposed by the Commissioner unless it can be demonstrated that he had erred in law, or he had failed to take into account a relevant factor or that the sanction is one so manifestly excessive such that no reasonable sentencing authority would have imposed it. 11. The principal argument deployed against the 1st and 2nd Decisions is this. The nature of the breach in Instances A, B and C is similar. Yet the Tribunal (differently constituted) had by the 4th Decision imposed a much lenient sanction. What the Tribunal did indicated that the sanctions imposed by the Commissioner by way of the 1st and 2nd Decisions were manifestly excessive. I disagree. 12.Any disparity in sentence arising here came from the Tribunal and not the Commissioner. The mere fact that the Tribunal (differently constituted) came to a different view on sanction for Instance C does not even begin to show that the Commissioner had erred in imposing the sanctions as he did by way of the 1st and 2nd Decisions. Indeed, on the evidence before me, I am not convinced that the Commissioner had erred at all. 13.The applicant further argued that the Commissioner should have treated Instances A and B as a continuing breach. I also disagree. I think the Commissioner was quite entitled to treat the breaches as separate instances. 14.The applicant finally argued that the Commissioner had failed to take into account the totality principle when imposing the sanctions. I also disagree. The applicant has not cited any authority to support its proposition that the totality principle, essentially a concept in criminal sentencing, is applicable in the present context. In any event, as I have said, the Commissioner had already taken into account all the relevant circumstances when imposing the sanctions. I can see no reason to interfere. The 3rd Decision 15.At the hearing on 22 July 2009, I refused to give leave to apply for judicial review against the 3rd Decision. I took the view that when the correspondence between the applicant and the Commissioner is properly read, the Commissioner did not purport to vary the statutory period for mounting the application for judicial review as alleged. The Commissioner was entitled to make sure that the applicant did take out the application and the grounds in support were reasonably arguable when considering if he should exercise his discretion to stay the execution of the sanction imposed. The challenge against the 3rd Decision is therefore plainly unarguable. Conclusion 16.For the above reasons, I will dismiss the application for leave in both actions.
Mr Edward Fan, instructed by Messrs Cham & Co., for the Applicant in HCAL113/2008 and HCAL51/2009 Appeals by the applicant dismissed. Please refer to CACV63/2010 and CACV64/2010 dated 12 October 2010 |
Further hearings and rulings under HCAL 113/2008