NG ENTERPRISES LTD v. THE URBAN COUNCIL

IN THE COURT OF APPEAL

1995, No. 147
(Civil)

- Headnote -

Administrative Law - Urban Council By-laws regulating hawkers – Amendment by the Urban Council to eliminate the category of itinerant hawkers including mobile vans – whether the amending by-law was ultra vires section 83A(1) Public Health and Municipal Services Ordinance.

Held (Court of Appeal, Litton V-P and Ching JA): As the whole activity to be regulated by the by-laws made by the Urban Council was hawking, it was lawful and intra vires the powers of the Urban Council to prohibit part of such activity.

(Godfrey JA dissenting): To prohibit itinerant hawkers from hawking altogether was beyond the powers of the Urban Council.  The amending by-law was ultra vires the enabling legislation.  

IN THE COURT OF APPEAL

1995, No.147
(Civil)

___________________________

___________________________

JUDGMENT

___________________________

Godfrey, J.A. :

Introduction

1.  This is an appeal from an order of Keith, J. made on 25 May 1995, effectively dismissing a challenge made by the appellant (“Mr. Softee”) to the validity of a by-law (the “new by-law”) made by the Urban Council (“the Council”) on 13 September 1994 under the provisions in that behalf contained in the Public Health and Municipal Services Ordinance, Cap.132 (“the Ordinance”). Mr. Softee sells ice-cream from mobile vans in streets within the Council’s area, pursuant to what are known as “itinerant hawker” licences issued under the Hawker (Urban Council) By-laws (“the By-laws”). The new by-law purports to do away with itinerant hawker licences altogether, and, says Mr. Softee, it will kill off Mr. Softee’s business.

The Issue

2.  Of course, whether Mr. Softee should be allowed to continue to sell ice-creams from mobile vans in Hong Kong is not for the court to decide. That is for the legislature to decide, or, if (but only if) the legislature has delegated the decision-making power in this connection to the Council, for the Council to decide. It is not in question that the legislature has delegated the power to regulate hawkers to the Council. The issue is whether the new by-law is lawfully made pursuant to that delegation. Mr. Softee claims that the power delegated to the Council to regulate hawkers does not empower the Council to eliminate itinerant hawking altogether, and says therefore that the by-law was not lawfully made. (Mr. Softee challenges the validity of the by-law on other grounds as well, but on the view I take of the case these do not arise and do not need to be noticed further.)

The Legislation

3.  We are concerned here with primary and subordinate legislation, and the relation between the two. The primary legislation with which we are concerned is the Ordinance; the subordinate legislation is the By-laws; including the new by-law challenged by Mr. Softee.

The Primary Legislation

4.  The Ordinance is concerned with a large number of matters affecting public health and municipal services; we are particularly concerned with part VI, relating to markets and hawkers, especially the fasciculus of sections 83, 83A, 83AA and 83B relating to the regulation of hawkers. For the purposes of the Ordinance “hawker” is defined, in the interpretation section, s.2(1) of the Ordinance, as follows (I omit an immaterial proviso):

“‘hawker’ means -

(a) any person who trades in any public place-

(i) by selling or exposing for sale any goods, wares or merchandise; or

(ii) by exposing samples or patterns of goods, wares or merchandise to be afterwards delivered; or

(iii) by hiring or offering for hire his skill in handicraft or his personal services; and

(b) any person who itinerates for the purpose -

(i) of selling or exposing for sale any goods, wares or merchandise; or

(ii) of hiring or offering for hire his skill in handicraft or his personal services.” [emphasis added]

5.  It will be noticed that this definition comprehends and recognises two distinct types of hawker, the hawker who offers his goods or services, in effect, from a fixed-pitch or stall and the hawker who travels about selling his goods or services in different places; both long-established and, at common law, lawful activities. The pedant might be forgiven for observing that, in ordinary English usage, the word “hawker” is not in fact used to describe those who trade from a fixed-pitch or stall; the more appropriate word for such a trader would, in former years, have been “huckster”, but that word has come to have pejorative connotations nowadays and is no doubt best avoided. Be that as it may, the primary legislation has not only recognised but has expressly distinguished between what it perceives to be two sorts of “hawker”; and it is necessary for us to take cognisance of this when we come to construe the legislation.

6.  Sections 83 to 83B read as follows:

“Hawkers

83. Interpretation for the purposes of sections 83A to 86D

For the purposes of sections 83A to 86D -

“commodity” means any goods, wares, or merchandise (including food and drink); and includes any sample of any such goods, wares, or merchandise;

“equipment” includes any stall, table, stool, chair, utensil, container, bin, or other furniture or paraphernalia used in connection with hawking; but does not include any commodity sold, or offered or exposed for sale, by a hawker;

“hawker offence” means an offence against section 83B or against any regulations made under section 83A;

“stall” includes any erection, structure, box, cart, barrow, trolley, bicycle, tricycle or van.

83A. Regulations relating to hawkers

(1) The Authority may make regulations for all or any of the following purposes-

(a) providing for the licensing of hawkers;

(b) providing for the classification of hawkers;

(c) restricting or prohibiting hawkers from carrying on business in any special place or area or otherwise than in any specified place or area;

(d) regulating or prohibiting the hawking of any specified commodities or services;

(e) prescribing conditions subject to which licensed hawkers may operate;

(f) providing for the employment by licensed hawkers of deputies and assistants;

(g) providing for the allocation of pitches to licensed hawkers, and for the erection by any such hawkers of stalls thereon, subject to such conditions as the Authority may specify (either generally or in any specific case);

(h) providing for the removal of hawkers and their equipment and commodities;

(i) providing for the court, on convicting a hawker of a hawker offence, to recommend to the Authority that the licence (if any) of the hawker be cancelled or suspended;

(j) (Repealed 49 of 1994 s. 18)

(k) providing for such other matters as may be necessary for the proper regulation and control of hawkers.

(2) Any regulation made under subsection (1)(c) relating to the restriction or prohibition of hawkers carrying on business in any specified place or area, or otherwise than in any specified place or area, may provide that the place or area be prescribed by the Urban Council in relation to the Urban Council area or the Regional Council in relation to the Regional Council area by order published in the Gazette, and may, in addition to publication in the Gazette, provide for any other means of making the place or area known to the public.

83AA. Authority may determine fees and charges relating to hawkers

(1) The Authority may determine fees and charges in respect of licences of hawkers and in respect of the allocation and use of hawker pitches or stalls.

(2) The Authority shall cause a determination made by it under subsection (1) to be published, for information, in such manner as it thinks fit.

(3) Subject to subsections (5) and (6), it is hereby declared that, notwithstanding the repeal of section 83A(1)(j) by section 18 of the Public Health and Municipal Services (Amendment) (No. 2) Ordinance 1994 (49 of 1994) -

(a) by-laws 7, 10, 10A, 11, 12 and 15 and Schedule 3 of the Hawker (Regional Council) By-laws (Cap. 132 sub. leg.); and
(b) by-laws 7, 11, 17, 21, 28, 30 and 33 and the Schedule of the Hawker (Urban Council) By-laws (Cap. 132 sub. leg.),

as in force immediately before that repeal, shall continue in operation for the purposes of subsection (4).

(4) Until the Authority determines under subsection (1) the fees and charges payable relating to hawkers referred to in that subsection, the fees and charges payable in respect thereof shall continue to be as prescribed in by-laws 7, 10, 10A, 11, 12 and 15 and Schedule 3 of the Hawker (Regional Council) By-laws (Cap 132 sub. leg.), or by-laws 7, 11, 17, 21, 28, 30 and 33 and the Schedule of the Hawker (Urban Council) By-laws (Cap. 132 sub. leg.), as the case may be.

(5) Where the Authority is the Urban Council, it may, by regulation amend or repeal all or any part of by-laws 7, 11, 17, 21, 28, 30 and 33 and the Schedule of the Hawker (Urban Council) By-laws (Cap. 132 sub. leg.).

(6) Where the Authority is the Regional Council, it may, by regulation amend or repeal all or any part of by-laws 7, 10, 10A, 11, 12 and 15 and Schedule 3 of the Hawker (Regional Council) By-laws (Cap. 132 sub. leg.).

(7) For the avoidance of doubt, it is hereby declared that a determination under subsection (1) -

(a) may provide for fees and charges payable in respect of -

(i) the grant or renewal of a temporary licence or a licence or a permit;

(ii) the allocation or reallocation of a pitch or stall;

(iii) the issue of a pitch card or a hawker badge;

(iv) any appointment of a hawker's deputy;

(v) the issue of a duplicate of, or any endorsement of or amendment to, such licence or permit or pitch card or hawker badge;

(b) may provide for apportionment, reduction, waiver or refund, in whole or in part, of any fees or charges otherwise payable under the determination.

83B. Commissioner for Transport may set aside streets for hawking purposes

(1) No person shall hawk in any street except in accordance with a licence issued under regulations made under section 83A.

(2) (Repealed 28 of 1973 s. 2)

(3) Any person who contravenes subsection (1) shall be guilty of an offence.

(4) The Commissioner for Transport may from time to time, after consultation with the Authority and the Commissioner of Police. declare in writing that the whole or any part of a street may be set aside to be used for hawking purposes, and shall give notice of any such declaration-

(a) by publishing it in one issue of the Gazette;

(b) by publishing it in 3 consecutive issues of at least one English language newspaper and one Chinese language newspaper;

(c) by causing copies of it to be exhibited in one or more conspicuous places in or in the immediate vicinity of the street.

(5) On the requirements of subsection (4) being satisfied -

(a) the Authority may allocate pitches in the street to hawkers (other than itinerant hawkers) licensed under regulations made pursuant to section 83A, subject to such conditions as may be specified by the Authority;

(b) the Commissioner for Transport may, if he thinks necessary, by further notice in the Gazette, order that -

(i) the street be closed to vehicular traffic; or

(ii) the street be closed to vehicular traffic travelling in such direction as he specifies in the notice,

either at all times or at such times as he specifies in the notice.

(6) On making an order under subsection (5)(b), the Commissioner for Transport shall cause to be erected pursuant to the Road Traffic Ordinance (Cap. 374) at each entrance to the street appropriate signs indicating the closure in accordance with the order.

(7) No action shall lie against the Crown, the Commissioner for Transport, the Authority, or any public officer by reason only of the exercise of the powers conferred by this section.

(8) Where under subsection (4) only part of a street is set aside, every reference in this section to the "street" shall be construed as meaning the part of the street so set aside.”

7.  The last matter to note, so far as the primary legislation is concerned, is that it is provided, by section 3 (and the Third Schedule to which it refers), among other things, that the Council is to be “the Authority” for the purposes of making by-laws for its own area under section 83A.

The Subordinate Legislation

8.  The By-laws contain provision, in part II, for the issue of hawker licences. Before the new by-law was made, a hawker could apply, under by-law 8, for a fixed pitch hawker licence or, under by-law 9, for an itinerant hawkers licence. But, as I have said, on 13 September 1994 the Council made the new by-law, the purpose of which was to delete itinerant hawkers licences with effect from the expiration of 12 months beginning on its commencement date. By-law 9 was expressed to be repealed.

The Law

9.  It is common ground that a legislative power given to a subordinate authority to make by-laws to regulate an activity cannot lawfully be exercised by the making of a by-law to eliminate the activity. The issue here, then, is one as to the nature of the new by-law; whether the new by-law should be treated as regulating hawking generally, by prohibiting a particular type of hawking (namely, itinerant hawking), or whether it should be treated as prohibiting altogether the activity of itinerant hawking under the guise of regulating hawking generally.

Conclusion

10.  I am of the opinion that the amending by-law amounts to an attempted modification of the primary legislation, which (as I have said) comprehends but also recognises and expressly distinguishes between the two types of hawking which the Council is empowered to regulate. To eliminate one such type of hawking altogether is to go further than the power to regulate extends. The case may be compared with Powell v. May [1946] 1 KB 330, cited to us on behalf of Mr. Softee, where the by-law attempted to forbid altogether betting in public places, although the applicable legislation allowed such betting subject to certain conditions. (Comparison may also usefully be made with Air 2000 Ltd v. Secretary of State for Transport, 1989 SLT 698 and Air 2000 Ltd v. Secretary of Transport, 1990 SLT 335, not cited to us, where the legislation enabled the Secretary of Transport to make regulations for the distribution of air traffic between airports, a power which it was held, in each case, did not permit him to make regulations having the effect of prohibiting some of the traffic altogether.)

11.  Keith, J. took the view that section 83B (which, it will be recalled, gives power to the Commissioner for Transport to designate certain streets for hawking) made hawking in the street a criminal offence if done without a licence : he concluded that hawking in streets was an unlawful activity which could be licensed, or eliminated, at the discretion of the Council, and that, accordingly, the making of the new by-law was an act within the powers of the Council. As to this, I differ from the judge. The correct view, in my judgment, is that itinerant hawking is a lawful activity which the Council is empowered to regulate but not to eliminate.

The Result

12.  I would, therefore, for myself allow this appeal, and declare the new by-law invalid; it is therefore unnecessary to deal with the other objections raised by Mr. Softee as part of its challenge to the validity of the new by-law.

Ching, J.A.:

13.  I have had the advantage of reading in draft the judgments of Litton, V.P., and Godfrey, J.A. I have concluded that, in agreement with Litton, V.P., this appeal should be dismissed.

14.  The expression “fixed pitch hawker” seems to me to be a contradiction in terms but it has become accepted in Hong Kong as referring to one who sells his wares or services from a fixed and designated location as opposed to an itinerant hawker who travels about to do so. However that may be, in my view there is only one general activity of hawking although within it not only the wares and services offered but the manner in which they are offered will differ widely. It is to be noted that the definition of “hawker” in section 2(1) of the Public Health and Municipal Services Ordinance, Cap.132, is compendious and draws no distinction between itinerant and fixed pitch hawkers although the existence of both types is recognised elsewhere in the Ordinance.

Litton, V-P:

Introduction

15.  This appeal concerns the statutory scheme operated by the Urban Council for the control of hawkers in the urban area. It is done through the Hawker (Urban Council) By-laws made under Section 83A of the Public Health and Municipal Services Ordinance Cap. 132. The provisions of Section 83A of the Ordinance, empowering the Urban Council to make regulations relating to hawkers, have been set out in Godfrey JA’s judgment and I need not repeat them here. As can be seen, the powers given to the Urban Council are wide, and they include the power to make regulations “providing for such other matters as may be necessary for the proper regulation and control of hawkers”: Section 83A(1)(k).

16.  For many years employees of the appellant company, as its nominees, have held “itinerant hawker (mobile van)” licences, thus enabling the company’s employees to lawfully sell ice-cream from its mobile vans in the streets within the urban area. Without such licences, hawking in the streets would have been unlawful: see s83B(1) and (3) of the Ordinance.

Policy relating to itinerant hawkers

17.  It is clear from the papers before us that the question of reducing the number of itinerant hawkers has been under consideration by the Urban Council for many years. As early as February 1975 the appellant company was told that the Urban Council would issue no more licences for mobile vans: though existing licences were, in fact, renewed from year to year. In January 1990, in a further attempt to reduce the number of itinerant hawkers in the streets, a scheme of incentives to transfer to fixed pitches or market stalls was introduced.

18.  On 17 March 1993 the policy of eliminating all Itinerant Hawker Licences (IHLs) with effect from 1 April 1996 was announced. It is clear from the papers before us that much thought had gone into this decision and that the position of vendors such as the appellant selling in the street from mobile vans had not been overlooked. For example, in a memorandum placed before the Market and Streets Traders Select Committee of the Urban Council one sees the following:

“(IV) Additional arrangement for IHL holders selling soft ice-cream/frozen confectionery

The proposed new policy objective is designed to delete all IHLs. Nevertheless, the Department accepts the continued need for the public to be able to purchase soft ice-cream/frozen confectionery in or near leisure grounds where no Urban Council kiosks are already provided and at certain other locations not covered by commercial outlets. It is proposed to achieve this by giving IHLs licensed to sell soft ice-cream/frozen confectionery the option to change to other trading status, under certain conditions. The numbers involved, in any event, are relatively small. Thus, in addition to the enhanced measures as set out in (I)(i), (II) and (III) above, the Department proposes that these IHLs be offered the following extra options in pursuance of the new policy :-

(a) IHL (Frozen Confectionery) holders and IHL (Mobile Van) holders selling soft ice-cream

Currently, 147 IHLs ( Frozen Confectionery) are issued to employees of 5 licensed frozen confectionery factories or importers at a current fee of $2, 170 per annum. These licensees are allowed to sell ice-cream, other frozen confectionery items, candies and soft drinks from bicycles or motor-cycles under specific conditions. In addition, there are 13 mobile vans with permission to sell soft ice-cream. These 13 licences are issued to 5 individual licensees and 8 nominated employees of a licensed frozen confection factory at a current annual fee of $21,250. At the meeting of the Working Party held on 19 and 20 May 1992, it was agreed that there is an obvious need for this kind of service, particularly in or near parks, promenades, pleasure grounds etc. The Department proposes that, subject to the agreement of the Recreation Select Committee on a site-by-site basis, that specified sites be approved within selected Urban Council leisure grounds for the sale of soft ice-cream/frozen confectionery. Relevant licence holders would be allowed to bid at restricted auctions to operate under contract from purpose-built kiosks within such selected leisure grounds. It is intended that successful hawkers would be temporarily permitted to operate from their vehicles at the specified sites within leisure grounds pending construction of purpose-built kiosks.”

The amending by-law

19.  Effect was ultimately given to this policy by the Urban Council passing the Hawker (Urban Council) (Amendment) (No.3) By-law 1994 which eliminated the category of itinerant hawkers from the statutory scheme.

“Unreasonableness” and “repugnancy”

20.  Having regard to the careful way in which the Urban Services Department and the Urban Council have approached their tasks, any suggestion that the amending by-law could be impeached on the ground of “unreasonableness” or “repugnance to the general law” can be totally removed from consideration. Although this was a feature of the appellant’s case in the court below, it was faintly argued in this court.

21.  This leaves only one matter for our consideration: was s83A of the enabling Ordinance wide enough to empower the Urban Council to make the amending by-law, removing from the by-laws the class of itinerant hawkers?

Construction of s83A

22.  The effect of eliminating itinerant hawkers as a class from the licensing scheme was to make itinerant hawking unlawful after 1 April 1996.

23.  Section 83A of the Ordinance, which provides the mandate to the Urban Council to make regulations relating to hawkers, deals with all hawkers without distinction as to class. And where sub-section 1(k) authorises the Urban Council to provide for “such other matters as may be necessary for the proper regulation and control of hawkers”, it is difficult to think of words of wider scope.

24.  It was submitted to us in argument that a power to make by-laws to regulate does not mean a power to prohibit, but this proposition is far too wide. As was said by the New Zealand Supreme Court in Hookings v. Director of Civil Aviation (1957) NZLR 929 at 934:

25.  “While a power to regulate will not authorise a total prohibition of the thing which is to be regulated (Jackson’s case and Municipal Corporation of Toronto v. Virgo [1896] AC 88), nevertheless, it has been truly said that all regulation imports some degree of prohibition, and that, in regulating the whole, it may be necessary to prohibit a part only”.

26.  Here, the whole activity to be regulated is that of hawking. What the Urban Council has sought to do was to prohibit part of that activity, that of the itinerant hawkers. I cannot see how it can be said that the Urban Council, by its amending by-law, was not seeking to regulate hawking as a whole.

27.  The matter of the proper construction of s83A can be viewed from another angle. At the hearing of the appeal, we were told that at the time the new policy was announced, there were a total of 12,481 hawker licences issued, of which 29 per cent were itinerant hawker licences.

28.  The reason for at first reducing and ultimately eliminating the category of itinerant hawkers has been stated in successive papers submitted to the Urban Council for consideration: for example, in an exhibit marked “LKK-2” (p206 of the bundle) we see the following statement:

“3. The Original basis of this licensing policy was that IHLS would trade in a genuinely itinerant manner in residential areas. This never actually took place to any great extent. It also needs to be acknowledged that for them to do so now would, in any case, be impractical and undesirable.

4.   IHLs have, quite understandably, been attracted to trade on streets/pavements with heavy pedestrian traffic and where business prospects are best. The result has been serious obstruction to pedestrian/vehicular flow and this is clearly unacceptable. It is also obvious that Hong Kong's pattern of development has resulted in few viable trading venues where serious obstruction would not be the result.”

29.  Clearly, the Urban Council could have dealt with the problem by refusing to renew the itinerant hawker licences (IHLs) as they expired annually, perhaps progressively. Under s125(1B) of the Ordinance the Urban Council is required to give 90 days’ notice of such intention, and the statute has established a system of reviews by the Urban Council itself and appeals to an independent Appeals Board in the event that the licence holder is aggrieved by such refusal. Doubtless, the legal machinery exists for the Urban Council to eliminate this class of hawkers from the streets altogether by using the powers under s125(1B)[1], though it would have been cumbersome and time consuming.

30.  If the Urban Council is given the power to eliminate itinerant hawkers from the streets by refusing to renew their licences, as clearly has been done (though subject to an appeal process), it would be an odd thing if the legislature should nevertheless have emasculated the Urban Council by withholding the power to achieve the same objective by making by-laws. This would, in my view, be to construe s83A(1) and particularly paragraph (k) far too narrowly, as if the word “regulate” could not encompass the prohibition of part of the activity to be regulated.

The judge’s approach

31.  In rejecting the argument that the amending by-law was seeking to prohibit an activity which was inherently lawful the judge said this:

“ The Ordinance does not regard itinerant hawking as a lawful activity. The fact that itinerant hawking is acknowledged to be a type of hawking in section 2(1) does not mean that its legality is accepted. On the contrary: sections 83B(1) and 83B(3) make it clear that there is a blanket ban on all hawking on the streets of Hong Kong, save only to the extent that it is rendered lawful by being licensed. It is not the case that hawking on the streets of Hong Kong is rendered unlawful only to the extent that it is not licensed. Such an argument is inconsistent with the language of sections 83B(1) and 83B(3), and it ignores the fact that section 83A confers only a power, not a duty (note the word “may”), on the Council to introduce a licensing system.

Accordingly, the amending Bylaw does not prohibit an activity which would otherwise be lawful. The correct analysis, in my judgment, is that it merely provides for an activity which the Ordinance has rendered unlawful, but which has been rendered lawful for the time being under the licensing system provided for by the Bylaws, to be rendered unlawful once again by the amendments to the relevant parts of the Bylaws.”

32.  Counsel for the appellant submits that the judge’s analysis is wrong because, under common law, hawking as an activity is not illegal. But this is beside the point. Section 83B plainly has made it unlawful to hawk in a street without a licence. Nothing in the Ordinance, as I read it, compels the Urban Council to grant licences to make the activity of itinerant hawking lawful. By the same token, it cannot be beyond the power of the Urban Council to prohibit itinerant hawking as from a fixed date, making it unlawful after that date. How is a statutory authority like the Urban Council to regulate an activity such as hawking in the street except through the sanction of the criminal law?

33.  Counsel for the appellant relies heavily on Powell v. May [1946] 1 KB 330 as authority for showing that the judge was wrong. That seems to me to be a very different case. There, book-making in the street and on race-tracks was governed by the Street Betting Act 1906 and the Betting and Lotteries Act 1934. The Glamorgan County Council made a by-law to this effect:

“No person shall frequent and use any street or other public place either on behalf of himself or any other person for the purpose of booking-making ....”.

34.  This was not said to have been ultra vires the enabling statute (s23 of the Municipal Corporations Act 1882) but was held repugnant to the general law as embodied in the two Acts to which I have referred. In finding in the appellants’ favour Lord Goddard LCJ said:

“In our opinion this by-law is repugnant to both these Acts. In effect those Acts do permit bookmakers to bet at race meetings provided that they observe certain conditions. In our opinion it is beyond the powers of a County Council to enact a by-law which prohibits them from doing that which the general statutes enable them to do.”

35.  As can be seen, Powell v. May was a case of repugnancy vis-à-vis the general law, not of ultra vires the enabling statute. Here, the enabling statute itself has made hawking in the streets unlawful without a licence and, at the same time, delegated to the Urban Council the task of licensing the activity of hawking generally.

36.  It is difficult to see how it can be argued, in these circumstances, that hawking as such is permitted, either generally or subject to certain conditions, as was the position regarding book-making in Powell v. May. On the contrary, as the judge said, the Ordinance itself rendered hawking “lawful for the time being under the licensing system provided for by the by-laws”. Power to make by-laws was given to the Urban Council. It would be an odd thing indeed if the same by-laws cannot render the activity – at least in part – unlawful.

Conclusion

37.  In my view, the judge was plainly correct in concluding that the making of the amending by-law was within the powers conferred on the Urban Council by s83A(1) of the Ordinance.

38.  The result is that, by a majority, this appeal is dismissed, with an order nisi that the appellant should pay the costs.

[1] “125(1B)(a) The renewal of any registration, licence or permit, if application therefor is made by the lawful holder on or before the date of expiry thereof accompanied by the fee or charge (if any) prescribed therefor, shall not be-

(i) refused unless notice in writing of its intention to refuse the same has been served by the licensing authority upon such holder not less than 90 days preceding the date of expiry of such registration, licence or permit, except where any of the requirements, conditions or restrictions to which such registration, licence or permit was subject has been contravened within the period of 90 days immediately preceding such date of expiry, in which case no such notice shall be required;
(ii) subject to additional or alternative conditions to those imposed in the registration, licence or permit in respect of which the application for renewal is made unless notice in writing of its intention to impose additional or alternative conditions has been served by the licensing authority upon such holder not less than 90 days preceding the date of expiry of such registration, licence or permit.

(b) Where application for renewal of any registration, licence or permit is not made or any fee or charge prescribed in respect thereof is not paid on or before the date of expiry thereof, renewal of the same may be refused without notice.

125(9) (a) If any person is dissatisfied with any decision referred to in subsection (8), he may, within 14 days after the service upon him of the notice declaring the same, apply in writing to the licensing authority for review, and the licensing authority may before determining the application –

(i) cause such investigation to be made as may in the circumstances appear to be necessary; and

(ii) if it thinks fit, appoint a place, time and day for hearing the application.

(b) The applicant may, if he so desires, be present at the hearing (if any) of an application under this subsection and be heard in its support either in person or by his representative:

Provided that, if he elects to be heard by his representative, he shall not himself be heard except by leave of the licensing authority.

(c) On determining the application, the licensing authority may confirm, vary, suspend or cancel the decision in question, or may extend any time specified for compliance with the requirements of any notice issued, or order made, by it under any of the provisions of this Ordinance relevant to such decision.

(d) Pending the determination of any application made under this subsection or any appeal under subsection (10), the licensing authority may, in its discretion, suspend the operation of the decision in respect of which such application or appeal is made.

125(10) If any person is dissatisfied with the determination of the licensing authority upon review under the provisions of subsection (9), he may, within 14 days after notification by the licensing authority of such determination, appeal –

(a) where the licensing authority is the Urban Council or the Regional Council, to the Appeals Board; and

(b) in any other case, to the Governor in Council by way of petition, and the decision of the Governor in Council shall be final.”