CHAN WING YEE HOU ZI v. DIRECTOR OF AGRICULTURE, FISHERIES AND CONSERVATION

HCAL70/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.70 OF 2006

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J U D G M E N T

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1. In this judicial review application, the applicant seeks an order of certiorari to quash the decision of the Director of Agriculture, Fisheries and Conservation (“the Director”) made on 1 March 2005 revoking the Livestock Keeping Licence held by the applicant.  The decision was made pursuant to section 8(a) of the Public Health (Animals and Birds) (Licensing of Livestock Keeping) Regulation, Cap. 139L (“the Regulation”).  It was on the basis that the applicant had not kept any livestock on her farm since at least January 2004.  The applicant challenges the Director’s decision on the grounds that it is illegal, procedurally improper and in Wednesbury unreasonable.  An important plank in the applicant’s case is that she had at all relevant times kept pigeons on the farm.

Factual background

2. On 17 March 1997, the applicant was granted a Livestock Keeping Licence (“LKL”) for keeping 6,500 pigeons in Farm no. LK451 situated at Lot Nos. 467A & B and 561A of DD117, 450 Shui Tsiu San Tsuen, Tai Tong Road, Yuen Long, New Territories (“the Farm”).  Previously, the LKL in respect of the Farm was held by the applicant’s parents, Mr Chan Yau Shing and Madam Mak Fong Lam.  The applicant’s LKL was for a period of three years.  At its expiration on 16 March 2000, it was renewed for another three years.  On 17 March 2006, the LKL was further reviewed for three years to expire on 16 March 2006.

3. In accordance with the practice of the Agriculture, Fisheries and Conservation Department (“the Department”), officers from the Livestock Farm Division of the Department would conduct regular inspections of the licensed farms for the purpose of ensuring there was no illegal keeping, over-keeping of livestock or that the farms were not inoperative or had other irregularities.

4. After each inspection, the officers would compile a written report.  In respect of inspections for the purpose of checking whether the farm is inactive, a confirmation sheet would sometimes be prepared.  The confirmation sheet is in duplicate.  The officers would ask the licensee or the person in charge of the farm to sign on the confirmation sheet to signify his understanding and agreement to the contents, including the number of livestock recorded on it.

5. The evidence filed by the Director shows that between 29 September 2000 and 10 September 2004, various officers of the Department had made eight inspections of the Farm.  The applicant and her parents had been interviewed on some of these occasions.  It was reported that no pigeon was kept on the Farm on each of these visits.  In respect of the inspection on 10 September 2004, the applicant’s father had signed on a confirmation sheet, which recorded that no pigeon was kept on the Farm.  

6. By letter dated 17 SSeptember 2004 (“the 17-9-2004 letter”), the Director pointed out that farm inspections showed that the Farm had ceased keeping pigeons in the preceding nine months.  The applicant was reminded her LKL was liable to be revoked under section 8(a) of the Regulation.  She was further informed that if she did not resume pigeon keeping on the Farm within the next three months, her LKL would be revoked.

7. This letter was sent to the Farm by ordinary post.  The applicant however says she had not received it.

8. The officers of the Department made further inspections of the Farm on 13 October, 11 November, 2 and 20 December 2004 and also 10 January 2005.  According to the officers’ reports, no pigeon was kept on the Farm during these inspections.  The applicant’s mother was present on two of these inspections. One Madam Chan Pon was present on some these inspections.  Both of them had signed on confirmation sheets confirming there was no pigeon kept on the Farm.

9. By letter dated 15 February 2005 (“the 15-2-2005 letter”), the applicant was informed that as she failed to resume pigeon rearing on the Farm within the three months period stipulated in the 17-9-2004 letter, the Director had decided to revoke the LKL at the expiration of 14 days from the date of the letter.  The applicant was further informed that if she was dissatisfied with the decision, she could make written representations to the Director within the next 14 days.

10. The 15-2-2005 letter was sent to the applicant’s residential address in Tsuen Wan by double registered post.  It was acknowledged receipt by someone who signed with the word “So”.  The applicant’s husband is surnamed “So”.  It is, however, the applicant’s case that she had not received or read the letter.

11. On 18 February 2005, a further farm inspection was conducted.  Again the officer reported that no pigeon was kept on the Farm.  The applicant’s mother also signed the confirmation sheet confirming no pigeon was kept on the Farm.

12. The applicant did not make any representation to the Director within the 14 days’ period stated in the 15-2-2005 letter.  On 1 March 2005, the Director revoked the LKL.

13. On 14 March 2005, the Government announced the Voluntary Surrender Scheme (“VSS”).  Under the VSS, livestock farmers may choose to surrender their livestock licences and lease operations on a permanent basis in exchange for ex gratia payments from the Government.

14. It is the applicant’s case that during a telephone conversation with the officers of the Department on 22 March 2005, she was made aware that the LKL had been revoked on 1 March 2005.  At her request, copies of the 17-9-2004 letter and the 15-2-2005 letter were faxed to her on that day.

15. By letter dated 23 March 2005 to the Director, the applicant objected to the revocation of the LKL and requested to reinstate her LKL. She enclosed in her letter a supporting letter of the same date from a Madam Chan Yuet Ho.  In the letter, Madam Chan Yuet Ho stated that between April 2004 and March 2005, the applicant had asked her to reserve pigeon stock for her, but due to reasons including keen market demand and weather condition, the breeding farm could not meet the applicant’s request.

16. On 13 April 2005, the applicant attended a meeting with the officers of the Department.  During the meeting, the applicant was shown the confirmation sheets compiled during the farm inspections.  The applicant complained that some of the confirmation sheets were not signed by her parents.  It was said that Madam Chan Pon was only a neighbour.  According to the officers, however, Madam Chan is the sister of the applicant’s father.  Shortly before the hearing of the judicial review, Madam Chan had made an affirmation in which she said she was a neighbour.

17. Having considered the matters raised by the applicant in her letter dated 23 March 2005 and in the meeting, the Director decided to maintain the decision to revoke the applicant’s LKL.  By letter dated 20 April 2005, the applicant was advised of the Director’s decision.  By letter dated 27 April 2005, the applicant made further representation to the Director.

18. Meanwhile on 17 April 2005, the applicant had lodged a complaint with the Ombudsman Office in connection with the revocation of the LKL.  On 6 October 2005, the Ombudsman decided to end the complaint investigation and issued the Investigation Report.  Among other matters, the Investigation Report made the following points that are directly relevant to the issues in this application:

(1)

The applicant had admitted to the officer(s) of the Ombudsman Office that she had at least since July 2002 ceased to keep pigeon on the Farm.

(2)

The applicant’s mother had informed the officer(s) of the Department that she was waiting for baby pigeons.  The Ombudsman considers that this goes to show that no pigeon was kept on the Farm during the inspections, a fact which was admitted by the applicant.  The Ombudsman is therefore of the view that the officers of the Department had not asked the applicant’s mother or other persons to sign on documents that contained incorrect information.

19. On 4 November 2005, the applicant wrote to the Chief Executive and the Secretary for Health, Welfare and Food complaining against the revocation of the LKL.  The Secretary replied by letter dated 3 February 2006, stating that the Director’s decision was reasonable and proper.  The applicant was further informed that she had a right to appeal to the Chief Executive in Council against the Director’s decision.

20. On 26 April 2006, the applicant wrote again to the Chief Executive making representations on the Director’s decision.  The Chief Executive’s office replied on 8 May 2006.

21. On 3 August 2006, after the commencement of the judicial review proceedings, the applicant made an application under the VSS.  The application is held in abeyance pending the outcome of this judicial review.

The application for judicial review

22. According to the applicant, she began to seek legal advice in May 2006.  Eventually on 23 June 2006, she filed the Form 86A to apply for leave to apply for judicial review.  One of the reliefs she sought was an extension of time to make the leave application.  Hartmann J called for oral submissions on the issue of delay.  On 26 July 2006 and after an ex parte hearing, the Hartmann J granted leave to the applicant to apply for judicial review.  The Notice of Motion was filed on 2 August 2006.

Grounds for judicial review

23. In this application, the applicant seeks only one substantive relief, namely, a certiorari to quash the Director’s decision to revoke the LKL.

24. The applicant relies on three grounds:

(1)	Illegality
	The applicant had been keeping pigeons on the Farm at all times and had the intention to keep pigeons, it is therefore illegal, improper and/or ultra vires for the Director to revoke the LKL under section 8(a) of the Regulation.
(2)	Procedural irregularity
	The Director acted in breach of natural justice by not affording the applicant an opportunity to be heard before deciding to revoke the LKL.  The applicant says that neither the 17-9-2004 letter nor the 15-2-2005 letter was properly served on her and she had received no notice or warning of the Director’s intention to revoke the LKL.
(3)	Wednesbury unreasonableness
	The applicant was not in breach of any of the licensing conditions and had been keeping pigeons on the Farm.  The Director’s decision is therefore unreasonable and irrational.

Were pigeons kept on the Farm?

25.  An important issue that underlines the Director’s decision and this judicial review is whether pigeons were kept on the Farm during the periods mentioned in the 17-9-2004 letter and the 15-2-2005 letter.  It is therefore necessary to resolve this issue before dealing with the applicant’s ground of judicial review.

26.  For the Director, the affidavits filed show that during the 14 farm inspections conducted between 29 September 2004 and 18 February 2005, no pigeon was found to be kept on the farm.  The officers who undertook the inspections had made affidavits confirming the results of their inspections.  Their inspection reports and the relevant internal file minutes were also exhibited.  In respect of six of the inspections, the officers had prepared confirmation sheets, of which three were signed by the applicant’s mother and one by her father.  The other two confirmation sheets were signed by Madam Chan Pon.

27.  In disputing the Director’s case that no pigeon was kept on the Farm, the applicant relies on the following:

(1)	The confirmation sheets were wrong and unreliable.  It is said that the applicant’s parents are illiterate and did not know what they were signing.  They were also not given copies of the confirmation sheets after they signed them.  It is also said that Madam Chan Pon had no knowledge of the Farm and was not authorised to represent the applicant.
(2)	There were always parent pigeons on the Farm because it was bad luck to have zero pigeon.
(3)	During the inspections, the officers from the Department only stayed at the entrance to the Farm for 1–2 minutes.  It is said that the officers were afraid of the dogs kept on the Farm and did not go inside the Farm.  It is further said that the pigeon cages were covered by curtains when the pigeons were breeding.
(4)	The applicant had incurred expenses to maintain the Farm.  The applicant had also reserved baby pigeons and about 100 baby pigeons were bought in the end of March 2005.
(5)	Madam Lam Ying Mui, who was a loyal customer of the Farm, had since 2002 been buying pigeons and pigeon eggs from the Farm.  In her affirmation, Madam Lam said she liked eating pigeons and bought pigeons from the Farm three times a week.  Every time, she would buy three to four pigeons.

28.  While I am conscious of the risks of resolving factual dispute on affidavits, I am convinced on the materials before me that the applicant’s assertion that pigeons had always been kept on the Farm is inherently improbable.

29.   First and foremost, until this judicial review, the applicant never claimed that pigeons were kept on the Farm.  In the many letters and complaints she wrote and made to the Director, the Ombudsman Office, the Chief Executive and the Secretary for Health, Welfare and Food, she never said the Director was mistaken or wrong in concluding that no pigeon was kept on the Farm.

30.   Not only this, in her first letter to the Director dated 23 March 2005, the applicant stated that her mother had, during the farm inspections, explained to the officers of the Department that time was required to await the supply of high quality baby pigeons and requested the officers not to revoke the LKL.  Similarly, in her complaint to the Ombudsman Office dated 16 April 2005, the applicant also stated that her mother had explained to the officers who inspected the Farm that it was not the case that they had ceased pigeon farming, but that they were waiting for high quality baby pigeons.

31. In her letter dated 4 November 2005 to the Chief Executive and Secretary for Health, Welfare and Food, the applicant further admitted that no pigeons were kept on the Farm.  Under point (2) of her complaints, the applicant complained that the Director had applied double standard in that during the same period, the adjoining pigeon farms also did not keep pigeons, but its licence was not revoked (隔隣之白鴿場和我們一樣都在同一時間內都沒有飼養白鴿，他們卻沒有被取消[牌照]).  Under point (4), the applicant made a further complaint that the Director did not consider her situation, namely, it was difficult to obtain high quality baby pigeons and she was busy taking care of her newborn baby such that she was forced to suspend pigeon farming for a short period (沒有實際考慮我們真實情況——優質白鴿苗難求，以及要忙於照顧剛出世之嬰兒，所以才迫不得以暫停飼養一段短時間…).

32. In addition, it was stated in the Ombudsman’s Investigation Report that the applicant had admitted to the officers of the Ombudsman Office that no pigeon was kept on the Farm. 

33. It is evident from the 17-9-2004 letter and the 15-2-2005 letter that the Director’s decision to revoke the LKL was premised on the consideration that the applicant had not kept pigeon on the Farm during the periods mentioned therein.  It is most extraordinary that the applicant would not refute this in her many letters of complaints if indeed pigeons were kept on the Farm.  It is further unthinkable that she would admit there was no pigeon on the Farm and even go so far as explaining or justifying why pigeon was not kept on the Farm.  It should also be noted that the letters and complaints were written and made not long after the LKL was revoked.  There is no room for mistake whether on the applicant’s part or on her parents’ part as to the situation on the Farm.

34. In the affirmations filed in support of this judicial review application, the applicant had offered no explanation as to why she never informed the Director or the other recipients of her letters and complaints that there were pigeons kept on the Farm.  Neither had she sought to explain the admissions made in her letters and complaint.  As to the admission made to the officers of the Ombudsman Office, although Miss Chung informed the court that the applicant denied it, the applicant never dealt with it in her affirmation in support or in her latest affirmation made shortly before the hearing. 

35. Secondly, in explaining to the inspecting officers that they had been waiting for high quality baby pigeons, the applicant’s mother was impliedly saying or acknowledging that no pigeon was kept on the Farm.  There is simply no reason for the applicant’s mother to mislead the officers if, as the applicant now says, there were in fact pigeons on the Farm.  In the Form 86A, the applicant stated that her parents said this to the officers because they wanted to “get rid of the officers as soon as possible”.  There was however no elaboration on the reason or necessity for having to get rid of the officers.  Miss Chung also suggested in submissions that it was because the applicant’s parents did not want the officers to walk around the Farm for fear they might frighten the pigeons.  I find this aspect of the applicant’s case hard to accept.  In any event, the applicant cannot complain if indeed her parents had deliberately misled the inspecting officers into believing that no pigeon was kept on the Farm. 

36. Thirdly, the applicant had not adduced any document, such as purchasing orders, invoices or receipts, to substantiate her assertion that she had been keeping pigeons on the Farm.  It is a condition of the LKL that the applicant must keep accurate and up-to-date records of livestock movements in and out of the Farm: Condition no. 8.  It is also a condition of the LKL that every consignment of livestock arriving on or leaving the Farm must be accompanied by the prescribed documents and the applicant is required to retain the original or copy of the documents for inspection by the officers of the Department: Conditions nos. 9 and 10.  Thus, if the applicant had been keeping pigeons on the Farm, she should be able to provide these records and documents to substantiate her case.  Not only had the applicant not exhibited any such record or document to her affirmations, she had also conspicuously failed to give any details of the pigeons that were said to have been kept on the Farm, including the number of pigeons kept and their movements. 

37. In particular, although the applicant had exhibited a number of photographs of the Farm to her affirmations, she had not produced any photograph depicting the presence of pigeons on the Farm.  This is so notwithstanding it is her case that she was still keeping pigeons on the Farm when she first learnt of the revocation of the LKL on 22 March 2005.  Furthermore, the applicant had not indicated in her affirmations as to what she had done to the pigeons that were on the Farm after she learnt of the revocation of the LKL. 

38. As to the evidence of Madam Lam Ying Mui that she had been buying pigeons from the Farm since 2002, it is of interest to note that her affirmation was made on 15 March 2007, five days before the hearing of the judicial review application.  Madam Lam has lived in the vicinity of the Farm for more than 40 years.  The applicant and her parents must have known her well since she was said to be a regular customer.  Yet, the applicant had made no reference to her or of any sale of pigeons to her or to anyone until she filed the second round of evidence in this application.  I would additionally observe that it is rather extraordinary for Madam Lam to purchase and consume 9-12 pigeons on a weekly basis, however much she and her family love pigeons.

39. Miss Chung in her submission refers to the several Checklist for Poultry Farm Visits compiled by the officers of the Department for the farm inspectors.  In respect of the visits conducted on 9 August and 20 December 2004, the dates “09-Aug-04” and “20-Dec-04” were typed in the column “Date of Blood Collection”.  It is submitted that if no pigeon was on the farm, how could it be that blood collection was done on these dates.  This submission ignores the fact that the document in question is a checklist for farm inspection and the dates were typed onto the document.  All these indicate that the documents were prepared with the dates typed in before the visits were carried out.  In both of the checklists in question, the words “no pigeon in farm” and “no pigeon was found” were handwritten on them.  The other particulars such as batch origin, date and number introduced and the number of blood collected were all left blank.  Reading the documents as a whole, it is plain that the entries of the dates in the column of “Date of Blood Collection” cannot be taken as showing that blood samples of pigeons had been collected during the visits.

40. Looking at the evidence before the court objectively, I am of the view that the officers’ evidence that no pigeon was found on the Farm during their inspections is to be preferred and accepted.  The inspections and the reports were made by different officers over a long period of time.  It is highly improbable that all the officers were mistaken on all the occasions.  There is also no conceivable reason for these officers to be untruthful about what transpired during their visits.  It is equally improbable that they would, as the applicant suggests, mislead or induce the applicant’s parents to sign on the confirmation sheets to acknowledge no pigeon was kept on the Farm.  On the other hand, as the foregoing analysis show, the applicant’s assertion that at all relevant times, pigeons were kept on the Farm is inherently improbable.

41. I now turn to deal with the grounds for judicial review.

Ground (1): Illegality

42.  The Director’s decision to revoke the LKL was made under section 8(a) of the Regulation.  Under the section, the Director may revoke a licence if “the licensee is no longer keeping livestock in or on premises on which he is licensed to keep livestock”.

43.  It follows from my acceptance of the officers’ evidence that no pigeon was kept on the Farm that the Director was acting within his power under section 8 to revoke the LKL.

44.   Miss Chung argue that because the section uses the words “no longer”, the Director should have considered the applicant’s future intention.  It is said that the applicant had in 2004 incurred expenses in renovating the Farm and had made reservations for baby pigeons, all of which demonstrated an intention to keep pigeons on the Farm.  Hence, it was ultra vires section 8(a) to revoke the LKL.

45.  I cannot agree to this construction of section 8(a).  In my view, the language of the section is clear.  The words “the licensee is no longer keeping livestock” (emphasis added) simply means the licensee used to be but is not keeping livestock at the time the Director considers to exercise the statutory power of revocation.  The Director needs not enquire into or be satisfied as to the applicant’s future intention.  Whether the applicant had intention to keep pigeons in future is irrelevant to the exercise of the power under section 8(a).

46.  Miss Chung further submits the Director acted ultra vires in relying on the Department’s policy to revoke a livestock keeping licence where the licensee has not kept any livestock for more than six months.  According to the Affidavit of Lee Chi Man filed on behalf of the Director, the Department will regard a farm to be inactive if it has not kept livestock for over six months.  In such a case, the policy of the Department is to issue a Reminder Letter to the licensee giving him a grace period to restock his livestock.  If he fails to resume livestock keeping within the grace period, the Director will issue a letter notifying the licensee that his licence will be revoked after 14 days and giving him 14 days to make representations.  In the present case, the Director had complied with the policy by the 17-9-2004 letter and 15-2-2005 letter.

47. The applicant complains that the policy was not stated in the conditions of the LKL and the applicant had no knowledge that the LKL would be revoked if no pigeon were kept on the Farm.  The applicant argues that the Director acted ultra vires in relying on the policy to revoke the LKL.

48. In my view, this argument is misplaced.  Firstly, the basis of the Director’s decision to revoke the LKL is section 8(a) of the Regulation.  The policy only specifies the manner and procedure for exercising the statutory power.  It is therefore incorrect to say that the Director relied on the policy to revoke the LKL.  Secondly, it is expressly stated in the conditions of the LKL that the licence is granted subject to, inter alia, the Regulation.  Even if the applicant was ignorant of the provision in section 8(a), it cannot render the Director’s exercise of the statutory power ultra vires.

49. Ground (1) therefore fails.

Ground (2) : Procedural impropriety

50. The main thrust of the applicant’s complaint under the ground of procedural irregularity is that she had received no prior warning or notice of the intention to revoke the LKL.  Specifically, the applicant denied the officers of the Department had warned her parents that if pigeon rearing was not resumed, the LKL would be revoked.  The applicant also complains that the 17-9-2004 letter was sent to the Farm despite her earlier request to send correspondence or documents to her residential address in Tsuen Wan.  The applicant further says that the officers of the Department were in the practice of telephoning her and they should have done so on this occasion instead of or in addition to writing to her.

51. As noted above, the applicant stated in her letter to the Director dated 23 March 2005 that her mother had explained to the inspecting officers they were waiting for high quality baby pigeons and requested them not to revoke the LKL.  This in my view demonstrates that the possibility of the LKL being revoked had been raised with the applicant’s parents during the farm inspections.  This serves to support the officers’ evidence that they had reminded the applicant’s parents that the LKL could be revoked if the keeping of pigeons was not resumed.

52. In respect of the 17-9-2004 letter, the Director cannot be said to have erred in sending it to the Farm.  The Farm is clearly a proper address for service.

53. As for the 15-2-2005 letter, the evidence shows that it had been received by someone present at the applicant’s residence.  As found by the Ombudsman, it was probably received by the applicant’s family member.  There is no explanation from the applicant as to why the letter had failed to reach her personally.  In any case, it cannot be said that the Director had failed to give notice to her of the intention to revoke the LKL.

54. Miss Chung argues that even if the 15-2-2005 letter had been read by the applicant, it was too late because the Director had already decided to revoke the LKL.  I do not agree.  The letter expressly informs the applicant of the right to make representation within 14 days.  Further, the revocation only took effect at the expiration of the 14 days.

55. Further, even if assuming the Director had failed to give prior notice to the applicant of the intention to revoke the LKL, the applicant has not shown any material unfairness to her.  As soon as she learned of the revocation of the LKL, she had made written and oral representations to the Director to persuade him to reconsider his decision.  The applicant has not demonstrated what further and additional representations and materials she could have put before the Director and which would have materially impacted on the Director’s decision, had she been given prior warning or notice of the intention to revoke the LKL.  The applicant has in this application suggested that she had purchased a stock of baby pigeons by the end of March 2005.  This does not accord with the applicant’s position as stated in her letters to the Director, nor with the letter written by Madam Chan Yuet Ho.  Even if it is the case that the applicant had acquired baby pigeons in March 2005, that was after the LKL was revoked.  It is not a matter that the applicant could have put to the Director before 1 March 2005 to advance her case and to dissuade him from revoking the LKL.

56. In short, I do not consider ground (2) to have been made out.

Ground (3): Wednesbury unreasonableness

57. The applicant’s complaint of Wednesbury unreasonableness is mounted on the basis that pigeons were kept on the Farm at all times.  In light of my rejection of the applicant’s assertion, it follows that this ground must fail.

Undue delay

58. The Director also relies on the fact that the applicant had delayed for some 15 months in bringing this judicial review and argues that the delay is detrimental to good administration such that the court should refuse to grant relief to the applicant. The applicant accepts that there had been delay but does not accept that the delay has caused any detriment to good administration.

60. Given my conclusion that all the three grounds for the judicial review cannot succeed, the issue of whether the court should exercise its discretion to refuse the relief sought because of undue delay does not arise for consideration.  I need only point out that what constitutes detriment to good administration is dependent on the facts of each case: Lo Siu Lan v. Hong Kong Housing Authority (unreported) CACV 378/3004, 16.122004, para.37.  In the present case, the fact that a re-opening of the Director’s decision under challenge would lead to other applications to re-open similar decision which, if successful would seriously impact on the VSS, will be a relevant consideration.

Conclusions

61. For the above reasons, the application for judicial review is refused.  Applying the normal rule of costs follow event, there is an order nisi that the applicant pays the respondent the costs of this application.