HONG KONG TIN LUNG TRADING CO (a firm) AND ANOTHER v. FOOD AND ENVIRONMENTAL HYGIENE DEPARTMENT

HCAL 231/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 231 OF 2016

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REASONS FOR JUDGMENT

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1.  This is an application for leave to apply for judicial review against the “decision” (“the Decision”) made by the Food and Environmental Hygiene Department (“the Department”) on 1 November 2016 allegedly suspending the import into and sale within Hong Kong of hairy crabs raised in 2 aquaculture farms (“the 2 Farms”) in Jiangsu Province in the Mainland.  In the hearing on 11 May 2017, I dismissed the leave application.  I now give my reasons.

2.  The 1^st Applicant is an importer and supplier of hairy crabs from Jiangsu Province in the Mainland.  The 2^nd Applicant is a limited company with the object to represent and promote the interests of the importers and sellers of hairy crabs in Hong Kong.

3.  In late September 2016, the Centre for Food Safety (“the Centre”) of the Department collected 5 hairy crab samples for testing as part of its seasonal food surveillance programme. 2 of the samples, which were imported from the 2 Farms, were found to contain dioxins and dioxin-like polychlorinated biphenyls (“PCBs”) at a level which was above 6.5 picograms toxic equivalent per gram.  The Department formed the considered opinion that hairy crabs with dioxins and dioxin-like PCBs at such level were unfit for human consumption and might be injurious to human health. 

4.  On 1 November 2016, the Department issued a press release (“the First Press Release”) informing the public that the import into and sale within Hong Kong of the hairy crabs raised in the 2 Farms (“Affected Hairy Crabs”) had been suspended with immediate effect.  It also contained a warning that selling food unfit for human consumption would be an offence under s 54 of the Public Health and Municipal Services Ordinance, Cap 132 (“PHMSO”).

5.  On 3 November 2016, the Department issued the second press release which contained, inter alia, the following information:

(i) the Centre had stepped up surveillance actions in respect of hairy crabs at import and retail levels, and it was discovered that another sample exceeded the action level for dioxins and dioxin-like PCBs;

(ii) the Centre warned the trade that they should stop the sale and removed from shelves the Affected Hairy Crabs in accordance with the Centre’s instructions to ensure food safety; and

(iii) if the trade did not remove the Affected Hairy Crabs from shelves, the Department could affix marks or seals to the Affected Hairy Crabs and consider disposing such food under s 59 of PHMSO.

6.  The Department issued further press releases on 11 and 16 November 2016 containing: (i) similar warnings; and (ii) update information about the follow-up works taken up by the Department and the Centre relating to the food safety for consumption of hairy crabs.

7.  The import and sale of hairy crabs were affected by the announcements made by the Department in the said press releases.  By letters dated 18 and 22 November 2016, the 2^nd Applicant, through its solicitors, requested the Department to, inter alia, clarify the legal basis for the Decision and cancel the Decision before 24 November 2016.

8.  In the reply letter from the Department dated 24 November 2016 (“the Reply Letter”), the Department stated, inter alia, the following:

(i) it referred to the various instances of detection of dioxins and PCBs in the Affected Hairy Crabs tested by the Centre and the various press releases issued by the Department;

(ii) it would be an offence under s 54 of PHMSO to import into and sell within Hong Kong any food which is unfit for human consumption; and

(iii) the Department had not issued any food safety order under s 30 of the Food Safety Ordinance, Cap 612 (“FSO”).

9.  On 13 December 2016, the Applicants made the present application for leave to apply for judicial review to quash the Decision.  The Applicants complain that, without invoking s 30 of FSO, the Department had made a “de facto” food safety order of an unlimited duration in respect of the import and sale of Affected Hairy Crabs.  Such act was ultra vires.  Further, the Decision is unlawful because it was made without providing an opportunity to the interested parties to make representation to the Department.  Finally, the Decision is liable to be quashed because it is unreasonable in Wednesbury sense.

10.  When the application for leave came before me in February 2017, I have some doubt as to whether the Department had, as a matter of fact, made a decision or order to ban the import and sale of Affected Hairy Crabs in Hong Kong, I therefore directed that an oral hearing be held for the leave application with notification be given to the Department as the putative respondent.

11.  In the hearing, Mr Cheng, counsel for the Department, clarified the following matters in respect of the “decision to suspend the import and sale of Affected Hairy Crabs” allegedly made on 1 November 2016:

(i) the Department at all material times took the view that the Affected Hairy Crabs were unsafe for human consumption;

(ii) in case of any import into and sale within Hong Kong of any Affected Hairy Crabs, the Centre may take action against the relevant traders under ss 54 and 59 of PHMSO; and

(iii) the Department has not issued any food safety order in respect of the import or sale of Affected Hairy Crabs under s 30 of FSO.

12.  That was also the stance of the Department as stated in the Reply Letter.

13.  Based on these undisputed facts, I agree with the Department that there was no “decision” amenable to judicial review.  There has been no order or decision made to ban the import and sale of Affected Hairy Crab in Hong Kong.  Unlike a contravention of a food safety order which would be a criminal offence under s 32 of FSO, non-compliance with the instructions from the Department under the various press releases, per se, would not entail any consequences.

14.  The alleged Decision as referred to in the First Press Release was no more than a forewarning to the traders, though in very strong terms, that action might be taken by the Department under PHMSO.  The press releases were not the exercise of the powers under PHMSO.  Only if action was indeed taken would there be an amenable decision.

15.  Even if a decision had been made to prosecute under s 54 of PHMSO, the Department would have to prove that the Affected Hairy Crabs imported or sold by a particular trader were in fact unfit for human consumption.  If the traders can show that the Affected Hairy Crabs are safe, there is actually nothing to prevent them from continuing importing and selling Affected Hairy Crabs in Hong Kong.

16.  On the other hand, even if a decision had indeed been made under s 59 of PHMSO to mark or destroy the Affected Fairy Crabs (which was not the case here), s 59 provides a channel for the aggrieved parties to challenge the decision and to seek compensation from the Director of Food and Environmental Hygiene.  It is trite law that the court will not generally entertain any application for judicial review unless all the other channels providing for redress have been exhausted.

17.  Mr Kam, counsel for the Applicants, argues that the announcement in the First Press Release amounted to a “de facto” food safety order banning the import or sale of Affected Hairy Crabs in Hong Kong.  However, since the Department had already clarified in the Reply Letter that there was no safety order issued, the Applicants, with proper legal advice, should have known that there was no such actual ban.  There is therefore no merit in the “de facto” argument.

18.  In view of my conclusion on the absence of a decision amenable to judicial review, it is not necessary for me to consider whether the Decision was made in breach of natural justice or whether the Decision is unreasonable in Wednesbury sense.

19.  For the above reasons, I rejected the leave application.

20.  As the announcements in the press releases gave the public the impression that the Department was imposing a ban to prohibit the import and sale of Affected Hairy Crabs in Hong Kong, which was in fact not the case, the Department and the Centre should provide more accurate and updated information to the public and the trade relating to the food safety of hairy crabs in the beginning of the hairy crab season this year.

21.  Both sides agreed that there should be no order as to costs for the leave application.  I therefore so ordered.