WAN HONG YAU v. URBAN COUNCIL

1997, No. MP 280

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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REASONS FOR JUDGMENT

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COURT: This is an application for a judicial review of the decision of the Urban Council refusing to renew a wall stall licence granted to the applicant, and requiring the applicant to vacate the pitch where the store was, in accordance with a resite notice issued under By-law 34 of the Hawker (Urban Council) By-Laws.

2. The applicant, Mr WAN Hong-yau, is the owner and occupier of the fixed pitch wall stall No. 1 in the lane at the side of No. 135 Bonham Strand East, carrying on at that store the business of printing in the name of Wing Tung Printing Press.

3. The building at No. 135 Bonham Strand East had to be demolished for the purpose of re-development. It was considered that all fixed pitch wall stalls at the building at No. 135 Bonham Strand East had to be resited. The director of Urban Council, by a letter dated 5 February 1996, request the applicant to vacate that site. In the same letter, the following suggestion to the applicant were made. Namely, that he may:

1) Look for another pitch -- fixed pitch wall stall and to obtain written consent from the owner of the building against which his stall shall rest. And he have to inform the Council in writing the particulars of the new stall. Whether the Council will approve the set-up of the new stall and issue him a new licence -- a new hawker licence, depends on the stalls and compliance with the licence issue conditions for a wall stall. Or;

2) After completion of the re-building work, return to the original fixed pitch wall stall at the side of No. 135 Bonham Strand East, Hong Kong, to resume business. If the owner of the new building does not object, and the said stall comply with the licence issue conditions, the Council will issue him a fixed pitch wall stall licence. Or;

3) To select, from the list of an allocated fixed pitches kept in the hawker section of the Urban Council's office a vacant fixed pitch and to run business therein.

4. It was further suggested to the applicant that if he selected either 1) or 2), his existing hawker licence had to be cancelled to facilitate the council to issue him with a new licence.

5. It appears that the building at No. 135 Bonham Strand East had already been demolished and hence the applicant's stall had ceased to be a wall stall.

6. In support of the present application, the applicant raised only one matter, namely, that the applicant and all his predecessor had acquired a posessory title to part of the site on which the stall stood.

7. It was suggested that the applicant inherited the said business from his father, and that his late father had commenced the business at the location in question since 1940, a claim supported by the business registration of the business.

8. It was suggested that the said stall occupied part of the land which was surrendered to the Crown in 1976, and part of it occupied Crown land. Insofar as that part which was surrendered to the Crown in 1976, the suggestion was that such surrender could not affect the posessory title of the applicant as he and his predecessor had been in occupation for over 20 years by 1976 and hence had obtained such a posessory title to that part of the land in question.

9. I personally have great reservation about the suggestion that the applicant had acquired some posessory title over that part of the land occupied by the applicant's stall, which had been surrendered to the Crown in 1976. But whether the applicant had already acquired posessory title over part of the land on which part of his stall occupied clearly is not a matter that could -- that can be resolved in this application. But I do not consider such aspect to be important insofar as this application is concerned.

10. It is not in dispute that at least part of the applicant's stall did occupy Crown land. Under By-Law 2 of the Hawker (Urban Council) By-Law, Cap. 132, a wall stall is defined as a stall which is affixed to or placed against any external part of any building or similar structures and which faces onto a street.

11. The wall stall licence issued to the applicant by the Urban Council was subject to inter alia the following conditions:

"2. The licencee shall comply with any conditions and requirements which may be issued to him at any time by the Urban Council, regulating the use and operation of wall stalls."

12. And then regulation -- condition 5:

"The licence is valid only for the operation of a wall stall."

13. And regulation 10:

"The licencee shall clearly understand that the licence issued relates only to that part of the stall and pitch situated on Crown land; that any dispute over the use of any part of the stall (or pitch) situated on private land is not a matter for the Urban Council, and must be resolved between the licencee and the owner of the land; and that the Urban Council will disclaim any responsibility or liability in such a dispute. In particular, the licencee must bear in mind that the possession of a licence issued by the Urban Council does not confer on the holder any proprietary right against the private land owner or any other person claiming any right over the private land, for example, a..."

MR CHAIN: Tenant.

COURT: "...a tenant of the owner." Thank you.

14. It is clear that a wall stall licence can only be validly issued if the store is affixed to or placed against any external part of any building or similar structure. There is no dispute that the building at No. 135 Bonham Strand East had already been demolished. Once the building is demolished, there is no place for the wall stall to continue to exist.

15. The issue of a wall stall licence is not dependent on the ownership of the land on which the stall exists. In the second affirmation of the applicant, it was suggested that "...except those part of the wall against which my stall is affixed to or placed, the building at No. 135 Bonham Strand East had been demolished."

16. The suggestion was that as the wall is still in existence, then so could the wall stall. I find such suggestion artificial. A wall, under the relevant regulation, has no independent existence. It has to be the external part of a building or similar structure. Without a building, there can be no external part of a building, and there can be no wall or wall stall.

17. In the second affirmation of LEE Kwok-kuen, filed on behalf of the respondent that was submitted to this court just before the hearing, it was pointed out that the wall behind the applicant's stall was retained because any further demolition might cause the applicant's stall to collapse, thereby causing danger to others.

18. 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.

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

20. Great emphasis has been laid on the case of WU Chi-ling v Urban Council, that's Miscellaneous Proceedings 1740 of 1995. In my view, this particular case of WU Chi-ling v Urban Council was decided on its own facts. In that case, the Urban Council withdrew the licence granted to the applicant on the basis that the owner of the land had withdrawn consent for the applicant to occupy the land in question. The court decided that if the applicant had, in fact, obtained posessory title over the land by reason of adverse possession, then the owner's consent was not relevant at all. When the Urban Council failed to take into consideration the issue of posessory title of the applicant over the land on which her stall occupied, it had failed to take into consideration all relevant matters, and the decision was thus considered to be Wednesbury "unreasonable". That case, with respect, has no bearing on the present case at all.

21. Mr LAM, on behalf of the applicant, emphasised that the respondent had not taken into consideration the question of possessory title of the applicant over part of the land in question. It was -- it is important to point out that when dealing with judicial review applications, the court is not concerned with technical or procedural irregularity, or a breach of natural justice. The court is concerned with actual injustice, or a real risk of injustice.

22. As Mr Justice Mortimer said in the case of Regina v Director of Immigration and the Refugee Status Review Board ex parte Dogard and others,reported in 1992, 1 HKLR at page 287. And at page 314, he has the following to say:

"I do not..."

No. He said this:

"In law, there is no technical procedural irregularity or breach of natural justice. Actual injustice or a real risk of it must be shown."

23. Although not in a judicial review, Cumming Bruce LJ, succinctly stated the principle inGeorge v Secretary of State, reported in 1979, PCR 609 at page 621:

"I do not for a moment accept that on the authority there is any ground for the view that there is such a concept known to the law as a technical breach of natural justice. A breach of natural justice means that because of what has happened, either somebody has actually suffered injustice or there is a real risk that somebody has suffered injustice."

24. On the facts of this case, there is no question of any injustice to the applicant or any real risk that the applicant has suffered injustice. There was no basis to suggest that there was any procedural impropriety in the decision-making process of the Urban Council. There was nothing irrational about the decision to ask the applicant to vacate the pitch, and to refuse to renew his licence. And there was nothing Wednesbury "unreasonable" about such a decision.

25. In the circumstances, the application of the applicant must be dismissed.