Read the full judgment text of CACV 000142/2003 on BabelCite. This Court of Appeal judgment was delivered on 9 January 2004 before Ma CJHC, Rogers VP, Le Pichon JA.
Administrative law – judicial review – public bus services – free shuttle bus services – passenger service licence – duty to consult existing public transport operators – academicity – discretion to determine substantive question where lis has disappeared – public interest – duty of full and frank disclosure in public law proceedings – costs. Public Bus Services Ordinance, Cap.230 ss.4, 5; Road Traffic Ordinance, Cap.374 ss.2, 27-29; RHC O.53 r.5(3). The applicant, Chit Fai, was a licensed PLB operator running green top routes K2 and K6 centred on the Hung Hom and Whampoa districts since 1980. The respondent, Kwoon Chung Motors Company Limited, held a passenger service licence and was granted successive permissions by the Commissioner for Transport from 1998 onwards to operate free shuttle bus services between the Wonderful Worlds of Whampoa shopping centre and nearby residential areas. A further permission was granted on 13 April 2002 and expired on 12 September 2002; an extension was refused on 14 September 2002. Chit Fai complained that these free bus services materially and adversely affected its routes and that it had not been properly consulted. Whether the Commissioner was under a duty to consult an existing public transport operator such as Chit Fai before granting or extending permission to a third party to operate free bus services in the same area, and if so to what extent, was the substantive question raised. Whether the court should entertain a judicial review application which has become academic because the impugned approval has expired by the time of the hearing, particularly in a public law context where the underlying controversy is on-going and the same issue is likely to arise again between the same parties. Held, allowing the appeal: following ex parte Salem [1999] 1 AC 450, the court has a discretion to determine a public law question even where the lis no longer exists, provided there is good reason in the public interest, and caution is required. The discretion should be exercised where, as here, the matter is an on-going one, the same point is likely to arise again between the same parties (as evidenced by HCAL 25/2003, to which Chit Fai was joined), and the question is of general importance for similar free shuttle operations in Hong Kong. The Court of Appeal, distinguishing a purely hypothetical or academic question from a real dispute whose immediate consequences have ceased, held that determining the consultation issue would not amount to giving an advisory opinion but would serve a useful public purpose. The Commissioner was also found to have been remiss in not fully disclosing the history of permissions granted to Kwoon Chung and the on-going dispute, contrary to the duty explained in Lancashire County Council ex parte Huddleston [1986] 2 AER 941 to conduct public law proceedings with all cards face upwards. The declaration application was ordered to be heard by the same judge hearing HCAL 25/2003, with liberty to apply for directions. Costs ordered nisi in favour of Chit Fai, the Commissioner to pay the costs of the appeal and below, such costs to be taxed if not agreed.
Legal issues: Whether the court should determine the substantive consultation question despite the original permission having expired · Whether the Commissioner failed in his duty of full and frank disclosure in the judicial review proceedings
Outcome: Appeal allowed; declaration application to be heard by the same judge hearing HCAL 25/2003, with liberty to the parties to apply for directions.
Cited by 1 case