MO CHUN HON v. THE AGRICULTURE, FISHERIES AND CONSERVATION DEPARTMENT

[English Translation – 英譯本]
CACV 143/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 143 OF 2007

(ON APPEAL FROM HCAL NO. 56 OF 2006)

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JUDGMENT

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Hon Tang VP (giving judgment of the Court):

1. On 13 June 2002, Madam Yeung Sau Mui, the wife of Mr. Mo Chun Hon, the Applicant herein, applied for a livestock keeping licence for rearing 30,000 quails.

2. The Agriculture, Fisheries and Conservation Department (“the AFCD”) refused the application in its letter to Madam Yeung dated 7 May 2003, the content of which is set out in full below:

1.         On 25 March 2002, you elected to cease quail rearing at Lot 1583 in DD124 Tin Sam Tsuen, Hung Shui Kiu, Yuen Long, New Territories and demolish the structures in the farm, thereby receiving a total sum of HK$460,665.52 as ex gratia payment for the cessation of business and the farm.  You were also notified that approval from the Lands Department must be obtained prior to any reconstruction of the structures concerned.  Our staff advised you at least twice between March and April 2002 that the aforesaid approval must be obtained before any reconstruction work was carried out.  However, to date we have not received any notice of approval of your reconstruction works from the Lands Department.

2.         In respect of the present application for a livestock keeping licence, you indicated that you would be supplying quails to Kadoorie Farm and Botanic Garden as well as Ocean Park Hong Kong.  However, following the outbreak of avian influenza (bird flu) among wild birds in Hong Kong in December 2002, we received notices from Kadoorie Farm and Botanic Garden as well as Ocean Park Hong Kong that they have decided not to feed the birds they display on quails.

3.         In Hong Kong, tests and experiments in the past have revealed infection of H6N1 and H9N2 influenza viruses among quails.  While these viruses give rise to relatively mild and self-limited disease in poultry (two infants were infected with H9N2 virus in 1999), once these viruses in quails are put in the same environment as poultry infected with H5 bird flu viruses, this will very likely trigger off a cross-recombination of viral genes.  Cross-recombination of genes of influenza viruses from different species of birds is believed to account for the formation of the virulent H5N1 strain in 1997.  To reduce this risk, the Government has introduced stringent measures to ensure complete segregation of quails from other local poultry in terms of distribution and sale.  As from March 2003, in respect of any new application for a livestock keeping licence (including the keeping of quails), the farm being the subject of the application is required to be located at least 500 metres away from existing poultry farms.  And there are 28 pigeon farms and one chicken farm within 500 metres of the property at which you apply to rear quails.  We therefore do not consider that sufficient segregation can be achieved to ensure that the viruses in the quails do not come into contact with other poultry.  As your application is a new application, and it fails to meet the above requirement regarding segregation.

3. On 25 August 2003, Madam Yeung and the Applicant wrote to the AFCD, asserting that quail breeding was introduced in mid-May 2003 and that there had been a small quantity of quail eggs.

4. Officers from the AFCD were sent on 2 September 2003 to inspect the farm of the Applicant and Madam Yeung at Lot 1583 in DD 124, Tin Sam Tsuen, Hung Shui Kiu, Yuen Long, New Territories (“the Farm”).  It was discovered upon inspection that Madam Yeung was illegally keeping 900 quails without a quail keeping licence.

5. On 3 September 2003, the AFCD issued a warning letter to Madam Yeung, notifying her that she would be liable to prosecution under section 3 of the Public Health (Animals and Birds) (Licensing of Livestock Keeping) Regulation, Cap. 139L if she failed to dispose of the quails by 14 September 2003.

6. On 18 September 2003, AFCD officers inspected the Farm again and found that Madam Yeung had stopped keeping quails.  No more inspection had been conducted by the AFCD since then.  On 9 February 2006, by a letter entitled ‘Automatic Declaration’, the Applicant notified the AFCD that the Farm had resumed keeping of 2,000 to 3,000 quails for more than one year pending issue of a licence by the AFCD.

7. In his affidavit dated 29 September 2006, Mr. Chan Kwok Yim, Field Officer I (Livestock Farm Licensing) of the AFCD, deposed that on the afternoon of 21 February 2006, he and Miss Au-yeung Kar Wai, Field Officer II, two Field Assistants, 4 workmen and 4 temporary workmen arrived at the Farm but were refused entry by Mr. Mo.  Subsequently, with the assistance of a number of police officers, they managed to enter the Farm.  Mr. Chan explained to Mr. Mo that he was suspected of keeping quails illegally, contrary to section 3 of Public Health (Animals and Birds) (Licensing of Livestock Keeping) Regulation, and that the quails Mr. Mo was keeping illegally had to be seized.  Mr. Chan took photographs for record purposes during the seizure, and the quails were counted in the presence of Mr. Mo, who confirmed and agreed that there were 3,317 quails.

8. At about 7.15 p.m. on the same day, Mr. Chan issued a receipt of seizure of birds to Mr. Mo, who then signed on the receipt.  At about 7.29 p.m., he invited Mr. Mo to give a statement but Mr. Mo refused.  Mr. Mo then submitted a declaration to the AFCD at the scene, protesting against the forfeiture.

9. Section 8 of Public Health (Animals and Birds) Ordinance, Cap. 139 provides that:

The senior veterinary officer, or any person acting under his direction, may seize any animal, bird or thing dealt with in contravention of this Ordinance or of any regulation thereunder, and may order the forfeiture of such animal, bird or thing, and the same shall thereupon be destroyed, sold or otherwise disposed of as the senior veterinary officer may direct.

10. Mr. Chan asserted in his affidavit:

9.         In carrying out the forfeiture, I had been authorized by Mr. Tai Hing Fung, Acting Senior Veterinary Officer, to execute the power conferred by section 8 of Public Health (Animals and Birds) Ordinance, Cap. 139.

11. On 26 April 2006, the Applicant filed a Notice of Application for Leave to Apply for Judicial Review, seeking leave of the Court of First Instance to apply for judicial review:

Object to the decision of the AFCD on 7 May 2003 refusing to issue a quail keeping licence and to the forfeiture of 3,300 baby quails on 21 February 2006.          

12. The Applicant sought the following relief:

Ask for the issuance of a quail keeping licence.  Compensate for the loss suffered over the years and for the forfeiture of 3,300 baby quails.  

13. Leave was granted by Chung J on 23 June 2006.

14. The Applicant’s application for judicial review was dismissed by Hartmann J after hearing on 22 February 2007.  Although Mr. Mo was the sole applicant, Hartmann J allowed Madam Yeung to be heard, and she was added as the 2^nd Applicant in the judgment of Hartmann J.

15. The Applicant Mr. Mo lodged an appeal on 21 May 2007.

16. It can be seen from the above that the Applicant and Madam Yeung had surrendered their licences for cancellation after they were given ex gratia payments of HK$263,600.19 and HK$460,665.52 respectively on 25 March 2002.  On 13 June 2002, however, Madam Yeung made an application for a livestock keeping licence for rearing 30,000 quails.  The AFCD rejected her application on 7 May 2003, after a lapse of approximately 11 months.

17. The Applicant contended that the procedure adopted by the AFCD for handling the application was unreasonable, in particular that the AFCD should not have varied the licensing requirements between the time of the submission of the application and the time of rejection of the application.  The Applicant also relied on a legitimate expectation that the relevant authority would consider his application according to the pre-existing requirements.

18. The Applicant’s fundamental complaint was about the rejection by the AFCD on 7 May 2003 of his application for licence.  One of the main grounds of rejection was:

… starting from March 2003 there is a new requirement for any application for a livestock keeping licence: the proposed rearing farm must be located at least 500 metres from existing licensed livestock farms.  The purpose of introducing this new biosecurity measure is to reduce the risk arising from transmission of viruses among farms, poultry and animals; and to avoid cross-recombination of viral genes and formation of virulent viruses.  …

19. The Applicant said it was not true that there were 28 pigeon farms and one chicken farm within 500 metres of the Farm, although he admitted that there were 2 chicken or pigeon farms.  However, as submitted by Mr. Mak, Counsel for the AFCD, the requirement was that the livestock farm which formed the subject of the application must be located at least 500 metres from the existing licensed poultry farms.  As a matter of fact, within 500 metres of the Farm there were 28 farms with subsisting licences.  The fact that those licensed farms were not keeping poultry is not material because, as long as they held valid licences, they were free to keep poultry if they wanted to do so.  In any event, Mr. Mo conceded that within 500 metres of the Farm there were 2 farms which kept poultry.

20. Further, in respect of this challenge, the AFCD made it clear in its letter of 25 March 2002 that:

(1)        Upon [your] receiving the allowance for closure of business, your present livestock keeping licence will be cancelled.  If you intend to breed poultry in future, you must apply to us for a livestock keeping licence.  We shall consider your application by reference to the factual circumstances of your farm, including land use authority and the licensing conditions in relation to public hygiene and environmental protection.

21. It was therefore not open to the Applicant to say that neither he nor Madam Yeung knew that environmental protection was a prerequisite to the issuance of a licence.  In any event, as will be seen below (paragraphs 29 and 30), the AFCD repeatedly pointed out in its letters in 2002 that the licensing requirements for farming quails were in the process of being amended, in which case the Applicant should have known that new requirements might well be introduced.

22. As Hartmann J observed in paragraphs 25 and 28 of his judgment:

25.       The Director at all times was responsible for the administration of policies that, in respect of the threat posed by bird flu, would counter that threat.  His administrative policies had to change to meet changing circumstances.  As was said by Lord Diplock in Hughes v. Department of Health and Social Security [1985] AC 776, at 788, when stressing the importance of an unfettered power to change policy: ‘The liberty to make such changes is something that is inherent in our constitutional form of Government’.

…

28.       Taylor LJ, in R. v. Secretary of State for Health, ex parte US Tobacco International [1992] 2 All ER 212, at 222, expressed the principle in the following terms:

‘The applicants are understandably aggrieved that, after leading them on, the government should then strike them a mortal blow by totally banning their products … However, a minister cannot fetter a discretion given him under statute.  Providing he acts within his statutory powers, rationally and fairly, he is entitled to change his policy.’

23. In view of this, the AFCD was both entitled and obligated to introduce new policies and appropriate requirements to meet changing circumstances.

24. As to why it took the AFCD 11 months to determine the application, Madam Chan Sze Ling (Veterinary Officer (Poultry Farm) Western of the AFCD) provided the following explanation in her first affidavit:

30.       Generally speaking, it takes at least 4 months to process and approve an application for a livestock keeping licence.  More time may be needed should certain circumstances arise, for example, where it takes time to collect information from other departments (such as the Environmental Protection Department and the Lands Department), where the information supplied by the applicant is incomplete, where the applicant has not yet built the facilities on the farm, and so on.  On the face of it, it took 11 months for us to process Madam Yeung’s application for a quail keeping licence.  However, as can be seen from the chronology of events stated above, we were unable to determine Madam Yeung’s application for a livestock keeping licence mainly because time was needed to amend the livestock keeping licensing requirements.  Madam Yeung’s application for a quail keeping licence was made at a time that witnessed the outbreak of bird flu.  We were endeavouring to draft a set of bio-security guidelines on the basis of the most valid and reliable information provided by local and foreign authorities, but this process was extremely time-consuming.  Subsequently, in the wake of the first outbreak of bird flu among wild birds in December 2002, we considered it necessary to review the draft guidelines.  On account of public interest, starting from March 2003 there is a new requirement for any application for a livestock keeping licence: the proposed rearing farm must be located at least 500 metres from existing licensed livestock farms.  The purpose of introducing this new biosecurity measure is to reduce the risk arising from transmission of viruses among farms, poultry and animals; and to avoid cross-recombination of viral genes and formation of virulent viruses.  And Madam Yeung has all along failed to satisfy the bio-security requirement.

25. Therefore, we see nothing improper in the AFCD’s decision on 7 May 2003 and the length of time involved in processing the application.

26. As regards the relief being sought, namely that a quail keeping licence be issued, Madam Chan explained in her first affidavit:

35.       In order to implement a comprehensive scheme to counter the increasingly serious global threat posed by bird flu, on 8 July 2005 the Finance Committee of the Legislative Council endorsed the proposal put forward by the Administration, which allowed ex gratia payments to be made to poultry farm licencees who voluntarily surrendered their livestock keeping licences.  The objective of the voluntary surrender scheme was to reduce the maximum number of live poultry being reared to 2 million.  The scheme was open for application for a period of 1 year commencing 5 August 2005.  All poultry farm licencees who voluntarily surrendered their livestock keeping licences and permanently ceased the business were entitled to ex gratia payments.  Between the date of launch of the scheme and 21 June 2006, 84 applications were received and 51 poultry farms had surrendered their livestock keeping licences.  We will therefore no longer issue livestock keeping licences.

Accordingly, the possibility of re-issuing a quail keeping licence simply did not exist.

27. As far as the Applicant’s claim for damages is concerned, all the documents show that, even though the Applicant had spent money on rebuilding the shed, the AFCD had more than once reminded him in writing that he must obtain written approval from the Lands Department before rebuilding the shed on the Farm (see the AFCD’s letter of 25 March 2002 to the Applicant and Madam Yeung).  On 10 April 2002, the AFCD reminded the Applicant again in writing that: if he intended to operate a quail-rearing farm again, he could not do so in the old shed, and any reconstruction of the shed must not be carried out without prior approval of the Lands Department; no livestock keeping licence would be issued unless the farm facilities satisfied the new public hygiene requirements, etc.

28. Upon inspection on 30 July 2002, AFCD officers found that the building in the Farm had already been rebuilt.  Madam Yeung was reminded that prior approval of the Lands Department must be obtained for any reconstruction and that no quails could be kept until a quail keeping licence was issued.

29. On 7 August 2002, the AFCD responded to Madam Yeung’s letter of 30 July 2002 by requiring the licence applicant to submit a proposal on the sale of the quails and a copy of a written permit issued by the Lands Department to rebuild a farmhouse.  At the same time, Madam Yeung was notified that the AFCD was in the process of amending the licensing requirements for quail keeping licences.

30. On 17 September 2002, the AFCD informed Madam Yeung in writing that it had requested the Lands Department and the Housing Department to inspect the buildings on the Farm.  The AFCD also reminded Madam Yeung that her application to the Lands Department for reconstruction of a shed did not mean that she had obtained approval from the Lands Department.  Madam Yeung was further informed that the licensing requirements for quail keeping were still being amended and that she would be informed in due course of the amended licensing requirements.

31. Furthermore, although the AFCD rejected Madam Yeung’s application for a licence on 7 May 2003, the Applicant did not apply for judicial review until 26 April 2006, which meant that the application was substantially out of time.  Under Order 53 of the Rules of the High Court:

(1)        An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

32. In paragraph 24 of her second affidavit dated 29 September 2006, Madam Chan Sze Ling explained:

… upon rejection of her application on 7 May 2003, the applicant Madam Yeung Sau Mui did not immediately apply for judicial review.  Instead, after 3 years, an application for judicial review was made by Mr. Mo Chun Hon, Madam Yeung’s husband.  The relief being sought, namely the issuance of a quail keeping licence, runs counter to the existing policy of the Administration.

The application was substantially out of time, and this Court would have dismissed it on this ground alone.

33. The Applicant contended that, by forfeiting his quails on 21 February 2006, the AFCD contravened Article 105 of the Basic Law.  Nevertheless, the Public Health (Animals and Birds) Ordinance provides that birds that are dealt with in contravention of the Ordinance or of any regulation thereunder may be forfeited and no compensation shall be payable in respect thereof.  The Ordinance does not in any way violate Article 105 of the Basic Law.

34. Article 105 of the Basic Law provides as follows:

The Hong Kong Special Administrative Region shall, in accordance with law, protect the right of individuals and legal persons to the acquisition, use, disposal and inheritance of property and their right to compensation for lawful deprivation of their property.  Such compensation shall correspond to the real value of the property concerned at the time and shall be freely convertible and paid without undue delay. …

35. In Weson Investment Ltd v. Commissioner of Inland Revenue [2007] 2 HKLRD 567 at 585, this Court held that “deprivation” should be construed as a taking of private property as under eminent domain and therefore should not include the recovery of tax, penalty or fine by way of legal proceedings:

79.       ‘Deprivation’, in BL 105, is used in the sense of expropriation, which is the expression used in its original Chinese.  In my opinion, BL 105 concerns essentially a taking, as under eminent domain.  I do not believe that suing for tax by action or for example, the recovery of a penalty or fine by action, even if it subsequently turned out to be wrong, would amount to or come within the scope of lawful expropriation under BL 105.

36. The Applicant has submitted information on the administrative law of Mainland China.  However, it is irrelevant to the present case, which should be dealt with in accordance with the laws of the Hong Kong Special Administrative Region.

37. Further, the Applicant’s accusation of perjury against AFCD officers is totally unfounded. 

38. For the above reasons, we dismiss the Applicant’s appeal with costs.