WU CHEE LING v. THE URBAN COUNCIL

1995 No. MP 1740

HEADNOTE

[(i) For a street to be "a public place" within the meaning of section 2(1) of the Public Health and Municipal Services Ordinance (Cap. 132), it is sufficient if it is a street to which the public have, or are permitted, access. Such a street can be "a public place" even if it is privately owned.

(ii) The practice of the Urban Council to require a fixed pitch licence holder to vacate his pitch if (a) the pitch is on private land and (b) the owner of the land objects to the presence of the pitch on it does not amount to the use by the Council of its statutory powers for an improper purpose, i.e. to advance the private law claim of the owner of the land. The objection of the owner of the land to the presence of the pitch on the land merely triggers the application by the Council of its practice.]

1995 No. MP 1740

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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INTRODUCTION

1. The Applicant, Wu Chee Ling, has a flower stall in Central. Her mother had been running the stall before her. The stall had been in the same place for about 45 years. However, the Applicant has now been required to move to another site. She does not wish to do so. She believes that she would loss much of the business which has been built up over the years. Accordingly, she now applies, amongst other things, for the quashing of the notice requiring her to vacate the site.

THE FACTS

2. A licensing system covering hawkers has been operated by the Urban Council ("the Council") for many years. The relevant by-laws are the Hawker (Urban Council) By-laws ("the By-laws"). The category of licence which the Applicant's mother, and later the Applicant, was issued with in recent years was a fixed pitch hawker licence. The last licence which had been issued to the Applicant prior to the issue of these proceedings was one dated 30th March 1995. It was expressed to be valid to 1st April 1996, and it described the location of the pitch as being on the steps of On Hing Terrace.

3. There is uncertainty as to whether the steps of On Hing Terrace are on private land. The owners of an adjoining property, Ivy House, at 18-20 Wyndham Street assert that the steps are on their land, and the Council takes a similar view. The researches which the Applicant's solicitors have carried out have proved to be inconclusive. I propose to proceed on the basis that the steps are on the land owned by the owners of Ivy House, because that is what both Mr. Philip Dykes for the Applicant and Mr. Russell Coleman for the Council asked me to do.

4. It is also common ground that the steps are subject to a right of way. It is unclear in whose favour that right of way exists. However, both Mr. Dykes and Mr. Coleman were content that I should proceed on the basis that the right of way is in favour of the owners and occupiers of the land adjacent to the steps and their lawful invitees. Since there is a shopping mall at the end of the steps, access to which is up the steps, their lawful invitees include members of the public who wish to gain access to the mall.

5. In November 1992, the Applicant received a letter complaining of the obstruction of the steps and the sale by her of funeral wreaths. The letter came from the owners of various nearby buildings, including the owners of Ivy House. The letter did not state that its authors wanted the Applicant to vacate the site. It simply asked her to be more mindful of their needs in the future, and warned her that if the situation did not improve, they might have to report the matter to the Urban Services Department ("the USD"), the Council's executive arm. The Applicant claims to have subsequently been informed by an officer of the USD that the owners of the various buildings wanted her removed from the site, but that no steps would be taken by the USD to remove her because her pitch was on private land.

6. In July 1994, the owners of Ivy House renewed their complaints about the obstruction of the steps by the Applicant. Their solicitors asked the USD for details of the licences which had been issued in respect of the pitch. The USD's response was to issue a notice to the Applicant dated 10th August 1994 requiring her to vacate the pitch within 15 days. That response was a surprising one for two reasons:

(i) It gave as the reason for the notice the fact that the Applicant's pitch was on the land owned by the owners of Ivy House. If what the Applicant says is anything to go by, that was the very reason why the Council had decided in 1992 not to take any steps to remove her from the site.

(ii) It required the Applicant to vacate the pitch when not even the owners of Ivy House had requested that.

The Applicant protested through her solicitors, and on 1st September 1994 the USD withdrew the notice. It did not say why at the time, but it has subsequently said that it did so because it realised that the owners of Ivy House had not actually withdrawn their consent to the Applicant's presence on their land: they had only complained about the obstruction which her presence there created.

7. In October 1994, the owners of Ivy House wrote to the Applicant and her mother through their solicitors. They purported to give her notice terminating her licence to occupy the site. That was surprising in view of the fact that the letter which the Applicant had received in November 1992 had complained that she had been occupying the site without the licence of the owners of the land. In a subsequent letter dated 23rd December 1994, the solicitors argued that the Applicant and her mother must have been occupying the site with the implied consent of the owners, and on the same day they wrote to the USD requesting that the Applicant's fixed pitch hawker licence be revoked.

8. The USD ultimately responded to that request by writing to the Applicant the letter dated 19th April 1995. It was that letter which informed the Applicant of the decision which is challenged in these proceedings. In that letter, the USD gave the Applicant notice that her stall had to be re-sited. She could choose another site from the Council's vacant site list, but if she did not choose one, the Council could allocate her one. She was given four months to vacate her present pitch. In requiring her to vacate the pitch, the USD was exercising the powers which the Council had under by-law 34(1) of the By-laws, which provides:

"Where the Council serves on a licensee to whom a fixed pitch has been allocated under by-law 33 a notice ordering him to vacate the pitch, he shall comply with the notice within such period as may be specified in it, being a period not less than 15 days from the date of service."

9. These proceedings were commenced on 30th June 1995. After leave to apply for judicial review was granted, the Council decided to take no action implementing the notice of 19th April 1995 until after the conclusion of the proceedings. Accordingly, the Applicant has remained on the pitch continuing to sell flowers from it. Indeed, she has been granted a further fixed pitch hawker licence for the 12 months up to 1st April 1997, so as to validate her occupation of the site since 1st April 1996 when her previous licence expired, pending the result of this case.

PUBLIC PLACE

10. The combined effect of sections 83B(1) and 83B(3) of the Public Health and Municipal Services Ordinance (Cap. 132) ("the PHMSO") is to make it an offence to "hawk in any street" without a licence. The PHMSO does not contain any definition of what constitutes a street. However, in the light of the definition of "street" in section 3 of the Interpretation and General Clauses Ordinance (Cap. 1) ("the IGCO"), Mr. Dykes does not argue that On Hing Terrace is not a street. It follows that the Applicant needs the cover of a licence in order to sell flowers on the steps of On Hing Terrace, unless that activity does not amount to "hawking".

11. A hawker (other than an itinerant hawker) is defined in section 2(1) of the PHMSO as a person who trades "in a public place". Accordingly, the Applicant needs the cover of a licence only if the steps of On Hing Terrace are a public place. If they are not, she is not a hawker, she does not come within the scheme of regulation provided for by the By-laws, and the notice purportedly served pursuant to by-law 34(1) was of no effect.

12. The only basis on which Mr. Dykes argues that the steps of On Hing Terrace are not a public place is that they are on private land. In my view, there is no support for that argument in the statutory definition of the phrase "public place". The phrase "public place" is not defined in the PHMSO. However, section 3 of the IGCO defines "public place" as meaning

"(a) any public street or pier, or any public garden; and

(b) any theatre, place of public entertainment of any kind, or other place of general resort, admission to which is obtained by payment or to which the public have or are permitted to have access."

The use of the word "public" in this definition does not denote that the place must be publicly owned. It is sufficient if the place is a street to which the public have or are permitted access. The steps of On Hing Terrace are such a street in view of the right of way which members of the public have up the steps to gain access to the shops at the far end of On Hing Terrace. This construction of "public place" is entirely consistent with Attorney-General v. Hui Shu Sang [1993] 2 HKC 526. In that case, the Defendant was charged with hawking without a licence. It was accepted that the arcade in which he was trading was privately owned, but that did not prevent Stock J. from concluding that the arcade was a public place for the purposes of the PHMSO.

13. It is against that background that Mr. Dykes argues that it was nevertheless never contemplated that the regulatory scheme covering hawkers should apply to private land. That is said to be borne out by a number of statutory provisions:

(i) Section 83B(4) of the PHMSO gives the Commissioner for Transport power to declare that a street be set aside for hawking purposes. Such a declaration would entitle him to make an order under section 83B(5) closing the street to traffic.

(ii) By-laws 27(1), 28(1) and 31 give the Council power to set aside and delineate fixed pitches, and to erect meters and signs on them.

These powers are said to be consistent only with the regulatory scheme applying only to land which is publicly owned, because the exercise of these powers on private land would constitute a trespass.

14. I reject this argument. The exercise of these powers on private land would only constitute a trespass if they were done without the consent of the owners of the land. Even then, section 83B(7) of the PHMSO gives the Commissioner for Transport immunity from action in respect of the exercise of his powers under sections 83B(4) and 83B(5). Since there is nothing to prevent the exercise of these powers on private land with the owners' consent, the existence of these powers is not inconsistent with the regulatory scheme applying to private land. Indeed, one can readily understand why the scheme should apply to private land. There may be many owners of private land who are content to have hawkers on their land provided that their activities are lawfully and properly regulated. There are echoes of this reasoning in Hui Shu Sang at p. 535E-H.

15. For these reasons, the steps of On Hing Terrace are a public place for the purposes of the PHMSO. The regulatory scheme governing hawkers therefore applies to the Applicant, and the Council had the power under by-law 34(1) to require her to vacate her pitch there.

ALLOCATION OF A FIXED PITCH

16. The Council's power under by-law 34(1) to order the holder of a fixed pitch hawker licence to vacate the pitch can only be exercised if a fixed pitch has been allocated to the licence holder under by-law 33. By-law 33 gives the Council the power (and in relation to certain licences the duty) to allocate a fixed pitch to the licence holder on payment of the prescribed fee. Mr. Dykes contends that there is no evidence that a fixed pitch had been allocated to the Applicant.

17. This argument is completely untenable. The evidence that a fixed pitch had been allocated to the Applicant is in the licence itself. First, the licence describes the location of the pitch as being on the steps of On Hing Terrace. Particulars of the location of the pitch have to be included in the licence only if a fixed pitch has been allocated: see by-law 8(2)(e). Secondly, the licence acknowledged payment of a pitch fee of $4,700.00. That was the prescribed fee for the allocation of a fixed pitch of the area of the Applicant's pitch for the 12 months from 1st April 1995: see the Notice (G.N.243) issued by the Council on 20th January 1995.

18. In the light of that, Mr. Dykes modified his submission in the course of argument. On the assumption that there had been a purported allocation of the fixed pitch to the Applicant, he argued that that allocation was of no effect because the Council has no power to allocate a pitch which is on private land. I reject this argument as well. If the scheme for regulating the activities of hawkers applies to hawkers who trade on private land with the owner's consent, it would be absurd to limit the allocation of fixed pitches to pitches on publicly-owned land. I can find nothing in the By-laws which begins to suggest that such a distinction may be a valid one.

THE WISHES OF THE OWNERS OF IVY HOUSE

19. The letter of 19th April 1995 did not merely give the Applicant notice of the order to vacate her pitch. It also gave her the reason for that requirement. She was told that the pitch was on land owned by the owners of Ivy House, that they had informed the USD that they no longer wanted the Applicant on their land, and that her pitch had to be re-sited "to be fair" to them. That reason is in accordance with what has been stated to be the Council's long-standing practice to require fixed pitch licence holders to vacate their pitch if the pitch is on private land, and the owner of the land no longer consents to the presence of the pitch on the land.

20. Mr. Dykes launched a sustained attack on the legality of the Council's practice. The implementation of the practice was nothing more than the use by the Council of its powers under the By-laws at the request of the owners of the land in order to advance their own private law claims. The Council is obliged to act for the public good in the public interest. Its statutory power to regulate hawking is derived from the PHMSO, the purpose of which, according to its title, was to "make provision for public health and municipal services". It may not use its statutory powers merely to secure the property rights of owners of private land: the enforcement of those property rights should be left to the owners of the land themselves. Not to put to fine a point on it, the owners of Ivy House, said Mr. Dykes, were getting the Council to do their own work for them. That was graphically illustrated by the USD's letter of 20th June 1995 to the Applicant's solicitors, which concluded:

"Finally, please let us know if your client has come to a settlement with the landowner of Ivy House so that the Council may consider to withdraw its resite notice."

21. I reject this argument. The Council's long-standing practice is an entirely rational and sensible one. Hawkers can only trade on private land if they have the consent of the owners of the land to be there. Otherwise, their presence on the land would constitute trespass. For that reason, the Council cannot sanction the presence of hawkers on private land without the consent of the owners of the land. It could not, for example, issue a fixed pitch hawker licence to a hawker who proposed to trade from private land without the owner's consent.

22. Seen in that light, there was nothing unlawful about the exercise by the Council of its power to require the Applicant to vacate her pitch. Although the effect of the notice under by-law 34(1) was to advance the claim of the owners of Ivy House for the removal of the Applicant from the site, that was not the reason for its issue. The reason for its issue was that the Council was not prepared to permit hawking on private land without the owners' consent. The Council did not implement the request of the owners of Ivy House to remove the Applicant from the land. What happened was that the request showed that the owners of Ivy House no longer consented to the presence of the Applicant on their land, and it was that lack of consent which triggered the application by the Council of its long-standing practice. In those circumstances, the USD's letter of 20th June 1995 merely informed the Applicant's solicitors that if the owners of Ivy House were to consent to the presence of her flower stall on the steps of On Hing Terrace, the fact which triggered the application of the Council's practice would no longer be present.

THE APPLICATION OF THE COUNCIL'S PRACTICE

23. That is not quite the end of the story. It goes without saying that if the Council was to be entitled to apply its long-standing practice, it had to take sufficient steps to satisfy itself that the facts relating to the Applicant's pitch fell within the terms of the practice. That meant satisfying itself that

(i) the pitch was on private land, and

(ii) the owners of the land had withdrawn their consent to the presence of the pitch on the land.

There is no doubt that the Council had taken sufficient steps to satisfy itself that the pitch was on private land: the Director of Urban Services had been informed at the end of November 1992 by the District Lands Office that the steps of On Hing Terrace formed part of a private lot, namely Inland Lot 617. There is equally no doubt that the Council had taken sufficient steps to satisfy itself that the owners of Ivy House had withdrawn their consent to the presence of the Applicant's pitch on the steps: that is what the USD had been informed by the solicitors for the owners of Ivy House in December 1994.

24. But what the Council also had to be satisfied about was that the owners of Ivy House were indeed the owners of that part of the steps of On Hing Terrace on which the Applicant's pitch was sited. On that question, the USD had been informed in July 1994 by the solicitors for the owners of Ivy House that the owners of Ivy House were the owners of the remaining portion of Inland Lot 617. Leaving aside for the moment the two occasions when an officer of the USD interviewed the Applicant and her mother in February and March 1995, the Council made no further inquiries for itself. In those circumstances, can it be said to have taken sufficient steps to satisfy itself that the Applicant's pitch fell within the terms of the practice?

25. In my view, it cannot. The Council had known, from the Applicant's solicitors' letter of 16th August 1994, that the Applicant's mother, and later the Applicant, had been occupying the site "for over 45 years". That was a sufficiently long period of time to alert the Council to the possibility that the Applicant might have acquired a possessory title to the site. Despite that, the Council made no inquiries as to the basis on which the Applicant and her mother had been occupying the site. Had the Council asked the Applicant's solicitors that, the answer which they would have got (because it is what they were told by the Applicant's solicitors within a few days of the service of the notice under by-law 34(1) on 19th April 1995) was that the Applicant had acquired a possessory title to the site.

26. What would have happened if, prior to the service of the notice on 19th April 1995, the Council had known that the Applicant was claiming to have acquired a possessory title to the site? The likely scenario is that the Council or its lawyers would have realised that whether the Applicant had indeed acquired a possessory title to the site would have depended on whether the Applicant's mother, and later the Applicant, had been there for more than 20 years without the licence and consent of the owners of Ivy House. If they had, (a) their occupation of the pitch would have been adverse to the owners of Ivy House, (b) any proceedings which the owners of Ivy House could have brought to remove the stall would have become time-barred once the 20 years had elapsed (section 7(2) of the Limitation Ordinance (Cap. 347)), and (c) the Applicant would indeed have acquired a possessory title to the site. Since the Council's long-standing practice could only apply to the Applicant's pitch if she had not acquired a possessory title to the site, it is extremely unlikely that the Council would have taken the risk of issuing the notice to vacate the site. Instead, it would have left it to the owners of Ivy House to bring proceedings themselves to determine whether the Applicant had acquired a possessory title. As it happens, that is what the owners of Ivy House have done. A few days before I gave leave to the Applicant to apply for judicial review, the owners of Ivy House had commenced proceedings in the High Court in which they sought the removal of the Applicant's stall. The defence of the Applicant and her mother is that they had occupied the site without the licence and consent of the owners of the land, and that they had therefore acquired a possessory title to that part of the steps on which their stall was.

27. All that remains for me to consider is whether this analysis is affected by the opportunities which the Applicant and her mother had on 15th February and 30th March 1995, when they met an officer of the Council, to put their side of the case. I do not think that it is. Neither the Applicant nor her mother was asked about the basis upon which they had been occupying the site, and they could not have been expected at that stage to volunteer the information to the Council that, because they had been there without the permission of the owners of the land, they had acquired a possessory title to the site. They could not possibly have appreciated the relevance of the absence of permission at the time.

28. The conclusion which I have reached, therefore, is that the notice served on the Applicant under by-law 34(1) dated 19th April 1995 was flawed, not so much because the Applicant had not been consulted over the application of the Council's policy to her (as Mr. Dykes contended), but because the Council had failed to take sufficient steps to satisfy itself that her pitch came within the terms of its policy.

CONCLUSION

29. I should add that, even if the Council had taken sufficient steps to satisfy itself of that, this application for judicial review would not automatically have been dismissed. If the Council was to be entitled to apply its long-standing practice, the pitch would have had to come within the terms of its policy as a matter of fact. I would not have been able to resolve the issue as to whether the Applicant had acquired a possessory title on the material before me. The best forum for the resolution of that dispute is the court which hears the claim being brought against the Applicant by the owners of Ivy House. I would have had no alternative but to defer giving judgment on this application until those proceedings had been concluded. As it is, since the Council did not take sufficient steps to satisfy itself that the pitch came within the terms of its policy, the orders which I make are

(i) an order of certiorari quashing the decision of the Council to serve a notice under by-law 34(1) requiring the Applicant to vacant the pitch, and

(ii) an order of certiorari quashing the notice dated 19th April 1995 served on the Applicant.

I do not see any reason why the costs should not follow the event. Accordingly, I make an order nisi that the Council must pay to the Applicant her costs of these proceedings, including any costs which have been reserved, to be taxed if not agreed.