Ng Enterprises Ltd v. The Urban Council
Read the full judgment text of DCCC 350/2006 on BabelCite. This District Court judgment was delivered on 5 December 1995.
1. This is an appeal from an order of Keith, J. made on 25 May 1995, effectively dismissing a challenge made by the appellant (“Mr. Softee”) to the validity of a by-law (the “new by-law”) made by the Urban Council (“the Council”) on 13 September 1994 under the provisions in that behalf contained in the Public Health and Municipal Services Ordinance, Cap.132 (“the Ordinance”). Mr. Softee sells ice-cream from mobile vans in streets within the Council’s area, pursuant to what are known as “itineran
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IN THE COURT OF APPEAL 1995, No. 147 - Headnote - Administrative Law - Urban Council By-laws regulating hawkers – Amendment by the Urban Council to eliminate the category of itinerant hawkers including mobile vans – whether the amending by-law was ultra vires section 83A(1) Public Health and Municipal Services Ordinance. Held (Court of Appeal, Litton V-P and Ching JA): As the whole activity to be regulated by the by-laws made by the Urban Council was hawking, it was lawful and intra vires the powers of the Urban Council to prohibit part of such activity. (Godfrey JA dissenting): To prohibit itinerant hawkers from hawking altogether was beyond the powers of the Urban Council. The amending by-law was ultra vires the enabling legislation. IN THE COURT OF APPEAL 1995, No.147 BETWEEN
___________________________ Coram: Hon. Litton, V.P., Godfrey & Ching, JJ.A. Dates of Hearing: 16 & 17 November 1995 Date of Handing Down Judgment: 5 December 1995 ___________________________ JUDGMENT ___________________________ Godfrey, J.A. : Introduction 1. This is an appeal from an order of Keith, J. made on 25 May 1995, effectively dismissing a challenge made by the appellant (“Mr. Softee”) to the validity of a by-law (the “new by-law”) made by the Urban Council (“the Council”) on 13 September 1994 under the provisions in that behalf contained in the Public Health and Municipal Services Ordinance, Cap.132 (“the Ordinance”). Mr. Softee sells ice-cream from mobile vans in streets within the Council’s area, pursuant to what are known as “itinerant hawker” licences issued under the Hawker (Urban Council) By-laws (“the By-laws”). The new by-law purports to do away with itinerant hawker licences altogether, and, says Mr. Softee, it will kill off Mr. Softee’s business. The Issue 2. Of course, whether Mr. Softee should be allowed to continue to sell ice-creams from mobile vans in Hong Kong is not for the court to decide. That is for the legislature to decide, or, if (but only if) the legislature has delegated the decision-making power in this connection to the Council, for the Council to decide. It is not in question that the legislature has delegated the power to regulate hawkers to the Council. The issue is whether the new by-law is lawfully made pursuant to that delegation. Mr. Softee claims that the power delegated to the Council to regulate hawkers does not empower the Council to eliminate itinerant hawking altogether, and says therefore that the by-law was not lawfully made. (Mr. Softee challenges the validity of the by-law on other grounds as well, but on the view I take of the case these do not arise and do not need to be noticed further.) The Legislation 3. We are concerned here with primary and subordinate legislation, and the relation between the two. The primary legislation with which we are concerned is the Ordinance; the subordinate legislation is the By-laws; including the new by-law challenged by Mr. Softee. The Primary Legislation 4. The Ordinance is concerned with a large number of matters affecting public health and municipal services; we are particularly concerned with part VI, relating to markets and hawkers, especially the fasciculus of sections 83, 83A, 83AA and 83B relating to the regulation of hawkers. For the purposes of the Ordinance “hawker” is defined, in the interpretation section, s.2(1) of the Ordinance, as follows (I omit an immaterial proviso):
5. It will be noticed that this definition comprehends and recognises two distinct types of hawker, the hawker who offers his goods or services, in effect, from a fixed-pitch or stall and the hawker who travels about selling his goods or services in different places; both long-established and, at common law, lawful activities. The pedant might be forgiven for observing that, in ordinary English usage, the word “hawker” is not in fact used to describe those who trade from a fixed-pitch or stall; the more appropriate word for such a trader would, in former years, have been “huckster”, but that word has come to have pejorative connotations nowadays and is no doubt best avoided. Be that as it may, the primary legislation has not only recognised but has expressly distinguished between what it perceives to be two sorts of “hawker”; and it is necessary for us to take cognisance of this when we come to construe the legislation. 6. Sections 83 to 83B read as follows:
7. The last matter to note, so far as the primary legislation is concerned, is that it is provided, by section 3 (and the Third Schedule to which it refers), among other things, that the Council is to be “the Authority” for the purposes of making by-laws for its own area under section 83A. The Subordinate Legislation 8. The By-laws contain provision, in part II, for the issue of hawker licences. Before the new by-law was made, a hawker could apply, under by-law 8, for a fixed pitch hawker licence or, under by-law 9, for an itinerant hawkers licence. But, as I have said, on 13 September 1994 the Council made the new by-law, the purpose of which was to delete itinerant hawkers licences with effect from the expiration of 12 months beginning on its commencement date. By-law 9 was expressed to be repealed. The Law 9. It is common ground that a legislative power given to a subordinate authority to make by-laws to regulate an activity cannot lawfully be exercised by the making of a by-law to eliminate the activity. The issue here, then, is one as to the nature of the new by-law; whether the new by-law should be treated as regulating hawking generally, by prohibiting a particular type of hawking (namely, itinerant hawking), or whether it should be treated as prohibiting altogether the activity of itinerant hawking under the guise of regulating hawking generally. Conclusion 10. I am of the opinion that the amending by-law amounts to an attempted modification of the primary legislation, which (as I have said) comprehends but also recognises and expressly distinguishes between the two types of hawking which the Council is empowered to regulate. To eliminate one such type of hawking altogether is to go further than the power to regulate extends. The case may be compared with Powell v. May [1946] 1 KB 330, cited to us on behalf of Mr. Softee, where the by-law attempted to forbid altogether betting in public places, although the applicable legislation allowed such betting subject to certain conditions. (Comparison may also usefully be made with Air 2000 Ltd v. Secretary of State for Transport, 1989 SLT 698 and Air 2000 Ltd v. Secretary of Transport, 1990 SLT 335, not cited to us, where the legislation enabled the Secretary of Transport to make regulations for the distribution of air traffic between airports, a power which it was held, in each case, did not permit him to make regulations having the effect of prohibiting some of the traffic altogether.) 11. Keith, J. took the view that section 83B (which, it will be recalled, gives power to the Commissioner for Transport to designate certain streets for hawking) made hawking in the street a criminal offence if done without a licence : he concluded that hawking in streets was an unlawful activity which could be licensed, or eliminated, at the discretion of the Council, and that, accordingly, the making of the new by-law was an act within the powers of the Council. As to this, I differ from the judge. The correct view, in my judgment, is that itinerant hawking is a lawful activity which the Council is empowered to regulate but not to eliminate. The Result 12. I would, therefore, for myself allow this appeal, and declare the new by-law invalid; it is therefore unnecessary to deal with the other objections raised by Mr. Softee as part of its challenge to the validity of the new by-law. Ching, J.A.: 13. I have had the advantage of reading in draft the judgments of Litton, V.P., and Godfrey, J.A. I have concluded that, in agreement with Litton, V.P., this appeal should be dismissed. 14. The expression “fixed pitch hawker” seems to me to be a contradiction in terms but it has become accepted in Hong Kong as referring to one who sells his wares or services from a fixed and designated location as opposed to an itinerant hawker who travels about to do so. However that may be, in my view there is only one general activity of hawking although within it not only the wares and services offered but the manner in which they are offered will differ widely. It is to be noted that the definition of “hawker” in section 2(1) of the Public Health and Municipal Services Ordinance, Cap.132, is compendious and draws no distinction between itinerant and fixed pitch hawkers although the existence of both types is recognised elsewhere in the Ordinance. Litton, V-P: Introduction 15. This appeal concerns the statutory scheme operated by the Urban Council for the control of hawkers in the urban area. It is done through the Hawker (Urban Council) By-laws made under Section 83A of the Public Health and Municipal Services Ordinance Cap. 132. The provisions of Section 83A of the Ordinance, empowering the Urban Council to make regulations relating to hawkers, have been set out in Godfrey JA’s judgment and I need not repeat them here. As can be seen, the powers given to the Urban Council are wide, and they include the power to make regulations “providing for such other matters as may be necessary for the proper regulation and control of hawkers”: Section 83A(1)(k). 16. For many years employees of the appellant company, as its nominees, have held “itinerant hawker (mobile van)” licences, thus enabling the company’s employees to lawfully sell ice-cream from its mobile vans in the streets within the urban area. Without such licences, hawking in the streets would have been unlawful: see s83B(1) and (3) of the Ordinance. Policy relating to itinerant hawkers 17. It is clear from the papers before us that the question of reducing the number of itinerant hawkers has been under consideration by the Urban Council for many years. As early as February 1975 the appellant company was told that the Urban Council would issue no more licences for mobile vans: though existing licences were, in fact, renewed from year to year. In January 1990, in a further attempt to reduce the number of itinerant hawkers in the streets, a scheme of incentives to transfer to fixed pitches or market stalls was introduced. 18. On 17 March 1993 the policy of eliminating all Itinerant Hawker Licences (IHLs) with effect from 1 April 1996 was announced. It is clear from the papers before us that much thought had gone into this decision and that the position of vendors such as the appellant selling in the street from mobile vans had not been overlooked. For example, in a memorandum placed before the Market and Streets Traders Select Committee of the Urban Council one sees the following:
The amending by-law 19. Effect was ultimately given to this policy by the Urban Council passing the Hawker (Urban Council) (Amendment) (No.3) By-law 1994 which eliminated the category of itinerant hawkers from the statutory scheme. “Unreasonableness” and “repugnancy” 20. Having regard to the careful way in which the Urban Services Department and the Urban Council have approached their tasks, any suggestion that the amending by-law could be impeached on the ground of “unreasonableness” or “repugnance to the general law” can be totally removed from consideration. Although this was a feature of the appellant’s case in the court below, it was faintly argued in this court. 21. This leaves only one matter for our consideration: was s83A of the enabling Ordinance wide enough to empower the Urban Council to make the amending by-law, removing from the by-laws the class of itinerant hawkers? Construction of s83A 22. The effect of eliminating itinerant hawkers as a class from the licensing scheme was to make itinerant hawking unlawful after 1 April 1996. 23. Section 83A of the Ordinance, which provides the mandate to the Urban Council to make regulations relating to hawkers, deals with all hawkers without distinction as to class. And where sub-section 1(k) authorises the Urban Council to provide for “such other matters as may be necessary for the proper regulation and control of hawkers”, it is difficult to think of words of wider scope. 24. It was submitted to us in argument that a power to make by-laws to regulate does not mean a power to prohibit, but this proposition is far too wide. As was said by the New Zealand Supreme Court in Hookings v. Director of Civil Aviation (1957) NZLR 929 at 934: 25. “While a power to regulate will not authorise a total prohibition of the thing which is to be regulated (Jackson’s case and Municipal Corporation of Toronto v. Virgo [1896] AC 88), nevertheless, it has been truly said that all regulation imports some degree of prohibition, and that, in regulating the whole, it may be necessary to prohibit a part only”. 26. Here, the whole activity to be regulated is that of hawking. What the Urban Council has sought to do was to prohibit part of that activity, that of the itinerant hawkers. I cannot see how it can be said that the Urban Council, by its amending by-law, was not seeking to regulate hawking as a whole. 27. The matter of the proper construction of s83A can be viewed from another angle. At the hearing of the appeal, we were told that at the time the new policy was announced, there were a total of 12,481 hawker licences issued, of which 29 per cent were itinerant hawker licences. 28. The reason for at first reducing and ultimately eliminating the category of itinerant hawkers has been stated in successive papers submitted to the Urban Council for consideration: for example, in an exhibit marked “LKK-2” (p206 of the bundle) we see the following statement:
29. Clearly, the Urban Council could have dealt with the problem by refusing to renew the itinerant hawker licences (IHLs) as they expired annually, perhaps progressively. Under s125(1B) of the Ordinance the Urban Council is required to give 90 days’ notice of such intention, and the statute has established a system of reviews by the Urban Council itself and appeals to an independent Appeals Board in the event that the licence holder is aggrieved by such refusal. Doubtless, the legal machinery exists for the Urban Council to eliminate this class of hawkers from the streets altogether by using the powers under s125(1B)[1], though it would have been cumbersome and time consuming. 30. If the Urban Council is given the power to eliminate itinerant hawkers from the streets by refusing to renew their licences, as clearly has been done (though subject to an appeal process), it would be an odd thing if the legislature should nevertheless have emasculated the Urban Council by withholding the power to achieve the same objective by making by-laws. This would, in my view, be to construe s83A(1) and particularly paragraph (k) far too narrowly, as if the word “regulate” could not encompass the prohibition of part of the activity to be regulated. The judge’s approach 31. In rejecting the argument that the amending by-law was seeking to prohibit an activity which was inherently lawful the judge said this:
32. Counsel for the appellant submits that the judge’s analysis is wrong because, under common law, hawking as an activity is not illegal. But this is beside the point. Section 83B plainly has made it unlawful to hawk in a street without a licence. Nothing in the Ordinance, as I read it, compels the Urban Council to grant licences to make the activity of itinerant hawking lawful. By the same token, it cannot be beyond the power of the Urban Council to prohibit itinerant hawking as from a fixed date, making it unlawful after that date. How is a statutory authority like the Urban Council to regulate an activity such as hawking in the street except through the sanction of the criminal law? 33. Counsel for the appellant relies heavily on Powell v. May [1946] 1 KB 330 as authority for showing that the judge was wrong. That seems to me to be a very different case. There, book-making in the street and on race-tracks was governed by the Street Betting Act 1906 and the Betting and Lotteries Act 1934. The Glamorgan County Council made a by-law to this effect:
34. This was not said to have been ultra vires the enabling statute (s23 of the Municipal Corporations Act 1882) but was held repugnant to the general law as embodied in the two Acts to which I have referred. In finding in the appellants’ favour Lord Goddard LCJ said:
35. As can be seen, Powell v. May was a case of repugnancy vis-à-vis the general law, not of ultra vires the enabling statute. Here, the enabling statute itself has made hawking in the streets unlawful without a licence and, at the same time, delegated to the Urban Council the task of licensing the activity of hawking generally. 36. It is difficult to see how it can be argued, in these circumstances, that hawking as such is permitted, either generally or subject to certain conditions, as was the position regarding book-making in Powell v. May. On the contrary, as the judge said, the Ordinance itself rendered hawking “lawful for the time being under the licensing system provided for by the by-laws”. Power to make by-laws was given to the Urban Council. It would be an odd thing indeed if the same by-laws cannot render the activity – at least in part – unlawful. Conclusion 37. In my view, the judge was plainly correct in concluding that the making of the amending by-law was within the powers conferred on the Urban Council by s83A(1) of the Ordinance. 38. The result is that, by a majority, this appeal is dismissed, with an order nisi that the appellant should pay the costs.
Mr. Philip J. Dykes & Mr. David Tolliday-Wright (M/s. K.Y. Woo & Co.) for Appellant Mr. Edward Chan, Q.C., Mr. Horace Y.L. Wong & Mr. Lee Tung Ming (A.G.C.) for Respondent [1] “125(1B)(a) The renewal of any registration, licence or permit, if application therefor is made by the lawful holder on or before the date of expiry thereof accompanied by the fee or charge (if any) prescribed therefor, shall not be-
125(9) (a) If any person is dissatisfied with any decision referred to in subsection (8), he may, within 14 days after the service upon him of the notice declaring the same, apply in writing to the licensing authority for review, and the licensing authority may before determining the application –
125(10) If any person is dissatisfied with the determination of the licensing authority upon review under the provisions of subsection (9), he may, within 14 days after notification by the licensing authority of such determination, appeal –
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