Chiu Hung Kwan v. The Director of Food and Environmental Hygiene

HCAL 107/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 107 OF 2011

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BETWEEN

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D E C I S I O N

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1.The Applicant seeks leave to apply for judicial review in respect of the terms of his tenancy in respect of cooked food stall no CF2 at Centre Street Market commencing on 15 October 2010. Having considered the submissions of counsel for the Applicant and the material before the court, I refuse leave for the reasons below.

2.The tenancy agreement was entered into by the Applicant on 15 October 2010.  He did not apply for judicial review until 28 December 2011.  The original Form 86 is defective in that the grounds for seeking relief were not set out.  A revised Form 86 was filed on 15 February 2012.

3.The grounds set out in the revised Form 86 contend that the Applicant has a legitimate expectation to have the tenancy on the same terms as he had previously enjoyed in respect of a tenancy at CF4 which was terminated by reason of the demolition of the same for the construction of the MTR West Island Line.  He also contended that the decision of the Director of Food and Environmental Hygiene was Wednesbury unreasonable in that he was treated less favourable than other tenants.  He said he had a vested right to automatic renewal for the tenancy of CF4 on the same terms.  He alleges that the Director failed to take account of the historical background of his case and the concession package granted when his predecessor-in-title, viz his mother, took up a tenancy at CF4.  He further says the Director failed to consider the advice of the relevant panel of the Legislative Council in freezing the rent for these stalls.

4.As demonstrated by the evidence now placed before the court by the Director, the contention that he was unfavourably treated as compared with other tenants has no merit.  As submitted by Miss Tong, the other tenants are not in the same position as the Applicant.

5.The crux of the matter is, as I see it, the relocation necessitated by the construction of the West Island Line.  As a result of that relocation, the tenancy for CF4 cannot continue.  A new tenancy has to be created.  Thus, the Applicant was given the option to bid in a restricted auction for another stall in another part of the Centre Street Market at some concessionary terms, albeit different from the terms of the tenancy for CF4.

6.For the disturbance or loss of his business, he could claim compensation from the MTR under the Railways Ordinance Cap 519.  The Applicant was not obliged to bid for the new tenancy. However, he seems to take the view that he could bid for the new tenancy and then compelled the Director to grant him a tenancy for CF2 on the same terms as his old tenancy.

7.Apparently, he relies on the right to renewal of his old tenancy to support his claim of a vested right for a tenancy on the same terms.  In my judgment, this is clearly bad in law.  The right to renewal, as stipulated in the tenancy agreements for CF4, is for the renewal of tenancy for the same stall and it is to be on the rent and terms to be approved by the Director (see Clause 3 of the tenancy agreements for CF4 in 2002 and 2001). Whilst it is true that the rent for CF4 had not been increased in the past years, it was due to the Rental Freeze Policy of the Director instead of any contractual right on the part of any tenant.  As explained by the Director, the Rental Freeze Policy is not applicable to a new tenancy.  The letter of 2 June 2010 relied upon by the Applicant should be read in that light.  As I said in the course of argument, it is for the Director to decide the scope of the Rental Freeze Policy and I see no basis for interpreting that policy in a manner that would give the Applicant the same concession even if he entered into a new tenancy.

8.In any event, due to the relocation, the tenancy of CF4 had come to an end.  Given that CF2 is a different premise, the subject matter of the lease is different from the tenancy for CF4.  As a matter of private law, the Director must be right to regard the tenancy for CF4 as a new tenancy.

9.Is there any principle of public law which obliged the Director to grant the tenancy for CF2 on the same terms and conditions as CF4? The Applicant relies on the principle of legitimate expectation and the principle of Wednesbury unreasonable.  On the evidence, the Director never made any representation to the Applicant that he would be granted a perpetual right to operate a stall at the Centre Street Market on the same concessionary terms as per the original tenancy for CF4.  I do not see any basis for a reasonably arguable case based on legitimate expectation.

10.Neither can it be reasonably contended that the decision of the Director to offer a tenancy for CF2 at different terms be Wednesbury unreasonable.  The Director has taken into account of the special circumstances leading to the relocation to offer a new concession package for the new tenancy.  How much concession was to be granted is a matter for the Director.  As I said, the Applicant could decide for himself whether to take up the new tenancy.  Whether he did so or not, he could claim compensation for his loss and damages caused by the relocation under Railway Ordinance.  But the Director has no legal obligation to compensate him for the relocation.  Once it is appreciated that the Applicant has neither private law vested right nor public law legitimate expectation to have a tenancy on the same terms, it is difficult to see why the court should interfere with the decision of the Director as to the terms of the new tenancy.  When the matter is seen in these lights, I do not think there is any scope for arguing that the Director acted without regard to relevant consideration or in a manner which is Wednesbury unreasonable.

11.Neither do I see any reasonably arguable basis to challenge the decision of the Director by reference to the speeches of the legislators.  They were not dealing with the issues at hand. 

12.Due to the time lapse between the relevant decision and the issue of Form 86, the Applicant needs an extension of time. He said the delay was caused by his application for legal aid which was initially refused.  He appealed against that on 25 January 2011.  Legal aid was only granted after a master had allowed his legal aid appeal on 2 November 2011.  For some reasons, the legal aid appeal has taken a rather long time to process in view of the normal time frame for commencement of judicial review.  But I am not going to hold that against the Applicant in this case.  Given that there is no merit in the substantive application, this court will not grant any extension of time.

Mr Simon H W Lam, instructed by S C Chan & Co, assigned by the Legal Aid Department, for the Applicant

Miss Sara Tong, instructed by the Department of Justice, for the Putative Respondent