WAN HONG YAU v. URBAN COUNCIL

IN THE COURT OF APPEAL

1997, No. 152

(Civil)

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J U D G M E N T

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Godfrey, J.A. :

Introduction

1. This is an appeal from Yeung, J., who on 22 May 1997 refused Wan Hong Yau ("the appellant") the relief he had claimed against the Urban Council ("the respondent") in proceedings against it for judicial review of its decisions (1) to cause the appellant to vacate land occupied by him as a so-called "fixed pitch wall stall" in a lane abutting 135 Bonham Strand East, Hong Kong; (2) to cease what was alleged to be his unlawful occupation of that land.

2. The judge was asked to quash these decisions, to which effect was given, in the case of the first decision, by a notice under By-law 34 of the Hawker (Urban Council) By-Laws, made under the Public Health and Municipal Services Ordinance, Cap. 132, and, in the case of the second decision, by a notice under section 6(1) of the Crown Land Ordinance, Cap. 28. As a result of these decisions, the appellant's licence to hawk from his stall has been revoked.

Background

3. The appellant is the owner and occupier of the fixed pitch wall stall to which I have referred. He has carried on there a printing business, in the name of Wing Tung Printing Press, which he inherited from his father, who commenced the business as long ago as 1940. Accordingly, the appellant was understandably anxious to remain there. But the building at 135 Bonham Strand East has had to be demolished for purposes of re-development. The respondent decided that in view of this re-development all fixed pitch wall stalls abutting the building ought to be resited. By a letter from the respondent dated 5 February 1996, the appellant was requested to vacate his stall.

4. Demonstrating, as it seems to me, a sympathetic understanding of the position of the appellant, the respondent suggested three possibilities.

5. First, it suggested that the appellant might look for another pitch at another place, and obtain written consent from the owner of the new building against which his stall could be erected.

6. Alternatively, it suggested that he might, after completion of the new building work, return to the site of his original stall at 135 Bonham Strand East.

7. In the further alternative, it suggested that he might select, from a list of an allocated fixed pitches kept in the hawker section of the respondent's office, a vacant fixed pitch from which to carry on his business.

8. But none of these suggestions were acceptable to the appellant.

9. The demolition of 135 Bonham Strand East proceeded without any legal proceedings being taken by the appellant to restrain that demolition. But the appellant has now sought to raise in these proceedings a question as to the ownership of the land on which his stall had been erected. It was originally erected partly on Crown land and partly on private land. But in 1976, the owner of that part of the land adjacent to the building surrendered his interest to the Crown, so that it fell into the other part abutting on the highway. By virtue of the surrender, if effective, the whole thus became Crown land. The appellant has sought to establish in these proceedings that the surrender was not effective to defeat his claim to a possessory title to the part of the land purportedly surrendered to the Crown in 1976, vested in him, so he says, by virtue of his and his father's occupation of the stall adverse to the title of the true owner of the surrendered land. The appellant says that, if this is right, the respondent cannot compel him to vacate his stall. Even if it is wrong, he says that the respondent, which called on him to vacate his stall on safety grounds, was not entitled to do so.

The judgment below

10. In his judgment, the judge expressed "great reservation" about the suggestion that the appellant had acquired a possessory title over that part of the land occupied by his stall which was surrendered to the Crown in 1976. But he said that whether the appellant had or had not acquired a possessory title to that part of the land was not a matter that could be resolved in the application before him. Further, he said that he did not consider such aspect of the matter to be important so far as the application before him was concerned.

11. The judge referred to the evidence before him as to the policy of the Council in this sort of case. This policy was expressed in an affirmation made by Senior Superintendent (Hong Kong West) of the Urban Services Department, one Lee Kwok Kuen. Mr. Lee said in his affirmation :

"4. Redevelopment of buildings invariably involves demolition work first. To allow hawker stalls to trade in situ will invite a congregation of the public with some inevitable risk. It is therefore the Council's policy that there should be no delay in re-siting the hawkers affected in order to reduce the possibility of danger to them and to their customers."

12. This policy is reflected in a memorandum submitted, as a committee paper, to the Markets and Street Traders Select Committee of the Urban Council on 30 March 1981, a copy of which was also in evidence before the judge. In that memorandum, in paragraph 9, one finds this :

"9. The Council is legally responsible for finding and allocating sites to licensed fixed pitch hawkers trading as cooked food stall operators ..... In practice, the Council resites all kinds of licensed fixed pitch forced resitees ..... with the exception of Fixed Pitch (Wall Stall) hawkers who are required under the existing Council policy to look for their own sites when they are required to vacate their stalls due to the redevelopment of buildings. The reason for this exception is because the owner of a building usually objects to the attachment of a stall to his building, and it would not be in the interest of the Council to get involved in such matters."

13. Of course, the point made in the last sentence of this would become irrelevant in the (very unusual) case where the hawker in fact owns the wall against which his stall is erected.

14. In paragraph 13 of the memorandum one finds this :

"13. Although it is necessary to lay down a policy in dealing with the various types of licensed hawkers who have to be resited due to the redevelopment of buildings, it must be borne in mind that the circumstances which require hawkers to be resited differ from case to case. It is therefore necessary for the Department to exercise discretion and flexibility in dealing with the forced resite of hawkers. The Department has to approach the problem with understanding, taking into consideration the interest not only of the hawkers concerned but also that of the residents and other government departments, and the problem of enforcement. ....."

15. The judge in his judgment, rejected the argument addressed to him, and repeated before us, that there was here some sort of mechanical application of this policy, which resulted in the notices in question being served on the appellant. I find not the slightest trace, in the material before us, of any justification for that suggestion. The impression made on my mind by the evidence is that the Council bent over backwards in this case fairly to apply the powers vested in it in relation to the licence of a fixed pitch wall stall hawker whose stall abuts a building which is about to be demolished.

16. The judge expressed his conclusion as follows :

"It is, in my view, perfectly reasonable for the Urban Council to ask the applicant to vacate the pitch in question, and to refuse to renew his licence when the building in question was demolished or about to be demolished. After all, the Urban Council must have regard for the safety of the people in the vicinity, including the customers or potential customers of the applicant.

When the applicant continued to operate his business after the building in question had been demolished, he was, in fact, committing a breach of the licence condition."

Was the judge right?

17. It was contended before us that the risk to the public in the continued use of the stall during re-development ought not to be described as "inevitable", because steps could be taken to ensure that that risk was either minimised or abolished altogether. That may be so, although I would myself have thought it more likely than not that some degree of risk, however minor, would continue to subsist if people were to have resort to a wall stall fixed against a building which was in the course of demolition.

18. Be that as it may, there seems to me to be no justification whatever for disputing the judge's conclusion that the decision of the respondent to act as it did here on safety grounds was "perfectly reasonable".

19. As to the appellant's claim to a proprietary interest in part of the land on which his stall was erected, the respondent cannot be expected to consider it; even the court cannot do so, except in properly constituted proceedings to which those who are interested in the matter in dispute are made parties. Only such proceedings can resolve any such question as to whether or not the appellant was entitled to a proprietary interest in the property. This court cannot, on this judicial review, enter upon the interesting question whether the alleged surrender of part of the land in 1976 was effective to make that part State property, so as to defeat the appellant's alleged possessory title.

20. That is a matter not of public right but of private right. It is not apposite for the court in these judicial review proceedings to get itself involved in that matter. Still less was it a matter for the respondent. But, in any event, I cannot see how it has any bearing on the respondent's right, and duly, to act lawfully and reasonably under the legislation under which it did in fact act here.

21. For these reasons, I am of the opinion that the arguments of the appellant, bravely advanced as they were by Mr. Albert Yau, based on (1) the safety point and (2) the proprietary interest point, both fail.

22. I would accordingly dismiss this appeal.

Findlay, J. :

23. I agree and there is nothing I wish to add.

Mortimer, V-P :

24. I agree with my brother Godfrey JA that this appeal must fail.

25. In those circumstances the appeal is dismissed. The costs will follow the event. The appellant will pay the costs of the appeal. The appellant's own costs will be taxed in accordance with the Legal Aid Regulations.