YOOK TONG ELECTRIC CO. LTD. v. COMMISSIONER FOR TRANSPORT

HCAL 94/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO.94 OF 2002

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J U D G M E N T

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Introduction

1. The applicant carries on business as a wholesaler and retailer in electrical goods. Most of its business concerns the supply of materials to the construction industry. As a result, on a daily basis it is required to deal in goods that are both heavy and bulky, including such items as electrical cables and conduit piping.

2. For many years, the applicant has carried on business from a building situated at 5 Tai Yuen Street in Wanchai. It does operate from other premises, for example, its principal warehouse is now in Kwai Chung. But the Tai Yuen Street outlet is where the business began. It has been described by Mr Wong Yan Lung SC, leading counsel for the applicant, as the 'flagship' premises.

3. Tai Yuen Street runs from south to north, the southern entrance being on Queen's Road East, the northern end being at the junction with Johnston Road. The applicant's building is close to the northern end of the street, some 38-40 metres from the junction with Johnston Road. The street is not long; it appears to run for some 200 metres.

4. It was the late Mr Wong Yook Tong who in 1945 started the business of supplying electrical goods from the Tai Yuen Street outlet, calling himself the Yook Tong Electric Company. Only in 1976 was the business incorporated as a limited liability company. It may therefore be said that the applicant's business has been run from the Tai Yuen Street outlet since the end of the Second World War.

5. The applicant, however, is not the owner of the Tai Yuen Street building. The property is owned by an associated company, Yook Tong Estates Limited. Both companies are controlled by the same family. There is no written lease agreement. What began as a sole proprietorship is now a corporate structure.

6. In the 1960s, a six-storey building was erected at the Tai Yuen Street outlet. It was designed specifically for the storage of heavy electrical materials. That building still stands. The applicant's 'shop', if I may so describe it, is on the ground floor, opening onto the pavement. There is, however, no carpark or loading bay within the structure of the building. Vehicles have always had to park on Tai Yuen Street, a public road, or find parking elsewhere in the area.

7. Like many streets in that area of Wanchai it being part of old Hong Kong Tai Yuen Street is relatively narrow. It is lined with buildings, the one against the other, many of them venerable structures. Ground floor shops run along the length of the street. Tai Yuen Street has been described as a 'market street'. It is an apt description. Government records show that for more than 20 years a large number of licensed hawkers have operated along Tai Yuen Street from 'fixed pitch' stalls. I am told that in June of last year 87 hawkers were licensed to operate stalls along the street. Of that number, 62% (some 54) have operated there for 20 years or more. In summary, while the applicant can claim a long-standing commercial association with Tai Yuen Street so too can a large number of licensed hawkers.

8. Tai Yuen Street is for the greater part of its length a one way street, the traffic running from south to north. Motor vehicles wishing to park in front of the applicant's building must therefore enter from Queen's Road East and make their way some 140 metres along the street. Until June 2001, vehicles bringing goods to the applicant's building were entitled (at all hours of the day) to negotiate their way past hawkers stalls and pedestrians to reach the applicant's building.

9. However, on 15 June 2001, by notice in the Gazette, the respondent, the Commissioner of Transport, designated the greater length of Tai Yuen Street to be a 'prohibited zone' for all motor vehicles between the hours of 10:00 a.m. and 6:00 p.m. daily. The 'prohibited zone' runs in a northerly direction from the carpark entrance/exit of a building called the CEF Life Tower which is close Queen's Road East junction up to the junction with Johnston Road. As I have said, the applicant's building at 5 Tai Yuen Street is only some 38-40 metres from the Johnston Road junction. It therefore falls into the 'prohibited zone'.

10. Section 11(e) of the Road Traffic Ordinance, Cap.374, empowers the Secretary for Transport to make regulations providing for the control and regulation of roads including a prohibition on driving vehicles on specified roads either absolutely or during stated hours. The Road Traffic (Traffic Control) Regulations have been made pursuant to s.11 of the Ordinance, reg.14(1)(a) giving the jurisdiction to the Commissioner to designate 'prohibited zones'. Reg.14, in so far as it is directly relevant, reads :

" (1) The Commissioner may, by notice in the Gazette, designate any area as

(a) a prohibited zone; or

(b) a restricted zone.

(2) A designation under subregulation (1)(a) may, absolutely, on specified days, during specified hours in any day, or during specified hours in any specified days, prohibit the driving of any motor vehicle or any specified class or description or motor vehicle on any road within the prohibited zone."

11. The applicant knew nothing of the designation until it was announced in the Gazette. The applicant then submitted a written objection to the Commissioner. However, by letter dated 10 December 2001, the Commissioner advised the applicant that the designation would remain.

12. In order to lessen the adverse impact of the designation on its business, the applicant applied to the Commissioner for the issue of 'prohibited zone' permits. Regulation 50 of the Road Traffic (Regulation and Licensing of Vehicles) Regulations enables a person who wishes to drive a motor vehicle in a 'prohibited zone' to apply to the Commissioner for such permits. It is within the discretion of the Commissioner whether or not to grant such an application, regulation 50(1) stating that the Commissioner "may issue such a permit free of charge subject to such conditions and in respect of such period as the Commissioner may think fit".

13. The applicant made an application for the issue of permits for four motor vehicles to enable them to enter Tai Yuen Street at any time during the restricted hours in order to load and off-load merchandise at the applicant's building. By letter dated 5 July 2001, the Commissioner refused the issue of the permits. The letter reads :

" I regret to inform you that after careful consideration, your application for prohibited zone permit is not approved for the following reasons:

(a) In order to improve pedestrian safety, the section of Tai Yuen Street between Johnston Road and the carpark entrance/exit of CEF Life Tower has been designated a prohibited zone from 10.00 a.m. to 6.00 p.m. daily thereat. Issuing exemption permits will defeat the purpose of designating prohibited zone.

(b) You are advised to drive your vehicles to enter Tai Yuen Street and undergo the loading/unloading activities outside the prohibited period."

[my emphasis]

14. The applicant now seeks judicial review of the following decisions made by the Commissioner :

(a) His decision published in the Gazette on 21 June 2001 to designate Tai Yuen Street as a 'prohibited zone' between 10:00 a.m. and 6:00 p.m. daily.

(b) His decision recorded in a letter of 10 December 2001 refusing to uphold the applicant's objection to his designation.

(c) His decision recorded in a letter of 10 December 2001 declining to issue prohibited zone permits to the applicant.

15. By way of relief, the applicant seeks orders of certiorari to quash the Commissioner's decisions as to the designation of Tai Yuen Street. Further or alternatively, it seeks an order of certiorari to quash the Commissioner's decision not to issue prohibited zone permits. Finally, it seeks damages for unlawful deprivation of its right to use the Tai Yuen Street outlet.

What brought about the imposition of the 'prohibited zone'?

16. As I have said, hawkers have been a way of life along Tai Yuen Street for 20 years or more. The 'market' character of the street attracts large numbers of pedestrians (especially between the hours of 10:00 a.m. and 6:00 p.m.) and it is their safety which has resulted in the imposition of the prohibited zone. Mr Cheung Oi Ling, a Senior Transport Officer in the Department of Transport, in an affirmation dated 5 June 2002, stated the fundamental premise in the following words :

" ... the Department has a duty to uphold pedestrian safety wherever it is at stake. The designation of the prohibited zone in Tai Yuen Street during 10:00 a.m. to 6:00 p.m. daily is required entirely on pedestrian safety grounds."

17. It appears that in 1991, a major exercise took place to move hawkers selling wet goods to two specially designated market areas away from Tai Yuen Street. However, dry goods hawkers were brought into Tai Yuen Street and an intersecting street called Cross Street. If anything therefore, from 1991 there appears to have been an increase in the number of stalls operating along the street.

18. I am told that at one time the Land Development Corporation had a plan to house all the hawkers in Tai Yuen and Cross streets in a permanent market. However, nothing came of it; the plan was shelved. In 2000, the plan was revived and is presently being considered by the Urban Renewal Authority. But nothing has yet been decided. If and when the plan is to be put into effect is therefore a matter of conjecture.

19. In summary, while there have been plans to rationalise the hawker problem in Tai Yuen Street (and its immediate vicinity), such plans are not yet near fruition. In the result, the Commissioner has had to accept that licensed hawkers and their customers will remain a legitimate presence in Tai Yuen Street for the foreseeable future.

20. In 2000, the Road Safety and Standards Division of the Transport Department ('the RSSD')conducted an accident study, focusing on the junction of Tai Yuen Street and Cross Street. The study was prompted by the fact that in the preceding 12 months the Department's records indicated that six or more accidents had taken place in that area resulting in injury to pedestrians. Following standard practice , the study reviewed the accidents which had occurred in the previous year; in the present case, between 1 October 1999 and 30 September 2000. The resulting report (completed in January 2001) was to the following effect :

" During 12 month period ending 30.9.2000, there were 6 personal injury accidents (1 serious and 5 slight) recorded at this location. All were pedestrians. Pedestrian accidents were scattered along Tai Yuen St near Cross St. The main contribution factor was impatient driving and street obstructed by hawker activities.

Site observation revealed that the location is a cross junction composed of narrow streets in old developed Wan Chai District. The streets are developed into on-street market place where both sides of streets are occupied by hawkers. Pedestrian flow is heavy and they use to walk freely on streets. Traffic is light and vehicles have to force their way through the heavy pedestrian flow."

21. The RSSD recommended that Tai Yuen Street from the carpark entrance/exit of the CEF Life Tower up to the junction with Johnston Road be closed to vehicle traffic between 10:00 a.m. and 6:00 p.m.

22. Before adopting that recommendation, the Commissioner sought the views of the Wanchai District Office. That office, in turn, conducted a consultation exercise. One District Board Councillor and four Wanchai Area Committee members were consulted. In addition, the District Office consulted office bearers of seven local owners' corporations. Six of those corporations had ground floor shops in their buildings but only one corporation represented a building situated within the proposed 'prohibited zone'. None of those who were consulted objected to the proposed designation. The police and the Highways Department were also advised of the proposals.

23. The District Office consultation exercise did not include any individual shop operators within the proposed 'prohibited zone' nor any hawkers operating on Tai Yuen Street. It follows that the applicant itself was not consulted.

24. As to the later refusal to issue 'prohibited zone' permits to the applicant, the Commissioner has said that to do so would in the circumstances undermine the scheme. It is said that it is a question of balancing the business needs of the applicant against the need to ensure the safety of the public. In any event, to quote from the affirmation of Mr Cheung Oi Ling :

"I ... was not convinced that loading/unloading of any such bulky goods to or from the Applicant's shop could not be rearranged outside the prohibition period i.e. before 10:00 a.m. or after 6:00 p.m. Even if there was a genuine need for the Applicant to arrange such deliveries to his shop in Tai Yuen Street within the prohibition period, the handling of the bulky goods manually from the alternative loading/unloading place on Johnston Road would pose a lesser hazard to the pedestrians when compared with the alternative (on the assumption that the applicant is granted the permits) of allowing the Applicant's delivery trucks to drive through the heavily crowded section of Tai Yuen Street from Queen's Road East. The Applicant's shop is about 140 metres from Queen's Road East in distance and covered the heavily crowded section of Tai Yuen Street. On the other hand, the alternative loading/unloading place on Johnston Road near the junction with Tai Yuen Street is only about 40 metres from the Applicant's shop."

The nature of the adverse impact upon the applicant's business

25. Before considering the various grounds of challenge, it is important to consider the nature of the consequences upon the applicant of the Commissioner's decisions to designate the greater part of Tai Yuen Street as a 'prohibited zone' and to refuse the applicant any exemption from that prohibition.

(a) The applicant has not in any way been prohibited been from carrying on business as a dealer in electrical goods from the Tai Yuen Street outlet. It has not been deprived of any form of licence.

(b) The applicant has not been prevented from using any specific, authorised facility within its building such as on site parking because, as I have said, the Tai Yuen Street outlet has no such facilities.

(c) The applicant has not been prohibited absolutely from having vehicles park in front of the Tai Yuen Street outlet in order to load and off-load goods. Instead, it has been restricted as to when those vehicles may do so. Vehicles may enter the street and park before 10:00 a.m. and after 6:00 p.m. Accordingly, outside of the restricted hours very heavy or cumbersome merchandise (for example, electric cables wrapped around wooden drums) may be loaded or off-loaded directly in front of the applicant's building.

(d) During prohibited hours, although vehicles may not park in front of the applicant's building, the applicant may also have deliveries made to and from its premises. The applicant's building is some 38-40 metres from the junction of Tai Yuen Street and Johnston Road and there is almost on that junction a designated area where vehicles may stop to load and off-load goods. That is the nearest and most convenient loading and uploading point. Of course, from the building to that point or from that point to the building, goods must be carried or placed on trolleys and must be man-handled through the crowds for a distance of about 40 metres.

26. The observations I have made are not to denigrate the adverse impact of the Commissioner's decision on the business of the applicant. The evidence reveals that it has lost a number of customers and, as a result, has had to lay off staff. The financial implications on the applicant's business have no doubt been profound The reasons, I think, are best explained by the applicant itself. In para.25 of its application for leave to apply for judicial review, its representative has said :

"A major part of Yook Tong's business is to supply electrical materials as a wholesaler to housing estate developments and other large commercial projects. There are about 100 to 110 similar wholesalers in Hong Kong, all of whom operate from premises immediately accessible by heavy trucks. The normal working hours for construction sites of these housing estate and large commercial projects are usually between 9:00 a.m. and 6:00 p.m. Contractors would thus usually require delivery of materials between 10:00 a.m. and 4:00 p.m. so that there are workers on site to cope with the unloading and storage. Because of limited space and high risk of theft, construction sites would not store large quantities of materials on site but require delivery of smaller quantities from time to time. Furthermore, towards the completion of the projects, especially for commercial projects, there would be lots of additions and alterations requiring frequent and urgent delivery of materials. Thus it is very common in the trade to require several deliveries within the same day. Thus the ability to meet the frequent and usually emergent needs of the contractors is key to the business. For smaller commercial projects and other end-users, convenience and accessibility to the supplier of materials is even more crucial. Business is highly competitive, if the supplier like Yook Tong is unable to provide the services on the customers' terms, they would simply go elsewhere. With no direct vehicular access to the shopfront of the Tai Yuen Street Outlet, many customers of Yook Tong would simply switch to other suppliers."

The applicant's grounds of challenge

27. With its business so adversely affected, the applicant has challenged the lawfulness of the Commissioner's decisions on four grounds

(a) That the Commissioner failed to give the applicant (and other affected shop operators) an opportunity to make representations before the 'prohibited zone' was imposed; in short, that there was a failure to consult.

(b) That the Commissioner ignored the applicant's legitimate expectation that it would be entitled at all times, despite the presence of licensed hawkers, to unload and load vehicles in front of its building.

(c) That the Commissioner ignored the applicant's right under the Basic Law to the use of its property.

(d) That the Commissioner, in designating the 'prohibited zone' and refusing to issue exemption permits to the applicant, made decisions that were Wednesbury unreasonable.

28. The Commissioner denies that he has acted unlawfully as alleged. While he accepts that the imposition of the 'prohibited zone' and the refusal to issue the applicant with exemption permits has had (and may continue to have) an adverse effect on its business, the decisions were made, he has said, in order generally to regulate the use of Tai Yuen Street in the public interest.

The applicant's first challenge failure to consult

29. No suggestion has been made that the Commissioner, before deciding whether to designate the greater portion of Tai Yuen Street as a 'prohibited zone', was under any stated statutory or regulatory duty to afford the applicant an opportunity to make representations. Accordingly, if such a duty was imposed on the Commissioner it can only have arisen as part of his general duty to act fairly.

30. What fairness requires will, of course, differ according to the circumstances. More often than not, it is, as Lord Mustill observed in R v. Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531, at 560, essentially an intuitive judgment. However, from a consideration of earlier authorities, Lord Mustill derived the following principles to give some guidance in the determination of such intuitive judgment :

"... (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstance. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer."

31. In the present case, the essential starting point, I believe, must be a consideration of the relevant legislation. As Lord Hailsham observed in Pearlberg v. Varty [1972] 1 WLR 534, at 540, decisions of the courts on particular statutes should be based in the first instance on a careful, even meticulous, construction of what the legislation actually means in the context in which it was passed.

32. The Road Traffic Ordinance and the regulations made under it provide inter alia for the regulation of Hong Kong's road traffic and for the regulated use of all types of vehicles upon those roads. Regulation, by definition, implies restrictions on unfettered freedom. Such restrictions are imposed however in the general public interest. This is so even if, as will inevitably be the case, particular restrictions affect some people more than others. The Commissioner, in the exercise of his administrative powers, must therefore exercise that power in a manner which is fair to the Hong Kong public as a whole; fair in the sense that it enhances road traffic efficiency for the benefit of all road users while at the same time ensuring the safety of all users : drivers and pedestrians alike.

33. That being the case, I can find nothing in the Ordinance or its regulations which implies that the Commissioner, if his powers to regulate road use are to be exercised in a manner which is fair in all the circumstances to all road users, must nevertheless consult with each of those individuals who may be adversely affected by any restrictions he considers imposing. As I have said, the Commissioner acts in the general interests of all Hong Kong residents. Each and every one of us may be adversely affected by restrictions he considers imposing. Is the Commissioner therefore to consult generally with the public before he imposes such restrictions? Viewed realistically, having regard to the extent and complexity of Hong Kong's roads, that would, in my opinion, place an intolerable burden on the Commissioner. It would hamper his work and could endanger public safety. In short, it would not advance the purpose of the legislation, it would frustrate it.

34. It was suggested that fairness dictated that the Commissioner should at least consult with those who most obviously are likely to be adversely affected. In the case of Tai Yuen Street that would include business operators such as the applicant. But if in each and every instance it is to be implied that the Commissioner must consult with those who are most likely to be adversely affected, where is the Commissioner to draw the line? If the business operators on Tai Yuen Street are to be consulted, why not the licensed hawkers too? In terms of resources, hawkers may run smaller businesses but administrative law principles of fairness are not to be determined by bank balances or the contents of stock rooms. What of property owners along the street or those people in the vicinity who may be indirectly affected by any change in traffic flow?

35. In his skeleton argument, Mr Chow, for the Commissioner, graphically illustrated the dilemma that would face the Commissioner if there was a over zealous imposition of common law procedural requirements upon the Commissioner's statutory duties. The Commissioner's decision to designate part of Tai Yuen Street as a 'prohibited zone' affected not only the applicant, said Mr Chow, or shop owners and operators. It affected everyone who lived or worked in that section of Tai Yuen Street including many licensed hawkers. It affected persons who might want, for one reason or another, to enter Tai Yuen Street. It affected many others who lived or worked or had reason to go to the vicinity of Tai Yuen Street because a restriction of traffic in one street was bound to have a 'knock-on' effect on traffic conditions in nearby streets. In such circumstances, if the Commissioner is not under a duty in each case to consult with the public generally, how is he to decide with whom he should consult?

36. What if the Commissioner is of the view, reasonably held, that restrictions must be imposed as a matter of urgency to ensure the safety of the public. Assuming a duty to consult, as the applicant has contended, would that duty still remain? If so, would that not frustrate one of the fundamental purposes of the legislation; namely, to ensure public safety and, when the circumstances dictate, to ensure it without delay? If it is conceded that in cases of emergency there need be no consultation, how is the Commissioner to decide, without fear of challenge, when a matter is or is not urgent? In R v. Birmingham City Council, ex parte Ferrero Ltd [1993] 1 All ER 530, at 542, a case in which it was submitted that enforcement authorities had a duty to consult before taking proceeding under s.14 of the Consumer Protection Act 1987, Taylor LJ made similar observations :

" But if the supposed duty to consult were to depend upon the facts and urgency of each case, enforcement authorities would be faced with a serious dilemma. What amounts to urgency is incapable of precise definition, and would be open in many cases to honest and reasonable differences of opinion. There would be a danger that although the authority reasonably suspected goods were dangerous they would feel bound to delay serving a notice until they consulted the trader, whereas, without a duty to consult, they would have served forthwith. Valuable time would be lost and danger could result.

37. If a duty to consult is to be implied, it must be to fulfil the purpose of legislation not to frustrate it. As Lord Reid emphasised in Wiseman v. Borneman [1969] 3 All ER 275, at 277 :

"For a long time the courts have ,without objection from Parliament, supplemented procedure laid down in legislation where they have found that to be necessary for this purpose. But before this unusual kind of power is exercised it must be clear that the statutory procedure is insufficient to achieve justice and that to require additional steps would not frustrate the apparent purpose of the legislation."

38. In the circumstances, bearing in mind the dicta of Lord Reid, I can see no basis upon which in the common law it is to be implied that a duty lies on the Commissioner, when regulating road use, to consult either generally with the Hong Kong public or with those likely to be adversely affected. As I have said earlier, to imply such a duty would frustrate the purpose of the legislation.

39. The evidence shows that, when it is deemed appropriate, the Commissioner does conduct consultation exercises. In the present case, through the Wanchai District Office, the views of local community representatives and several owners' corporations were obtained before a final decision was made on designation. As I have said, the views of the police and the Highways Department were also sought. All of this no doubt constituted a prudent measure but it does not infer a duty to consult.

40. Having chosen to conduct a consultation exercise, although its terms are a matter for him, the Commissioner must, of course, ensure that it is sufficiently balanced and cogent not to undermine or distort the final decision that he makes on the matter, rendering that final decision one which no reasonable decision could make. Mr Wong, for the applicant, has described the limited consultation exercise that was conducted as being absurd : wholly insufficient. While it may have been wiser to conduct a broader exercise I make no determination of that issue I cannot see how it can be condemned as in any way being so inadequate as to be unreasonable in the public law sense. Local community representatives were consulted and the representatives of several local owners' corporations, one of those corporations having a building which would fall into the 'prohibited zone'. No objections were received.

41. Finally, it is to be recorded that, after the designation had been published in the Gazette, the applicant was given an opportunity to make representations with a view to procuring the cancellation or modification of the designation. That opportunity accords with the fifth of the principles of fairness spoken of by Lord Mustill in Doody (para.30 supra).

The applicant's second challenge legitimate expectation

42. In or about mid-1980, the Urban Council & Urban Services Department of the Government carried out an exercise for the orderly demarcation of licensed hawkers' stalls in Tai Yuen Street. On 12 June 1980, the applicant's solicitors wrote to the Department stating that it was alarmed at the fact that the stalls, once demarcated, might block the entrance of the applicant's business premises. The letter continued :

" Our client's business requires the unloading from lorries parked just outside our client's premises nearly one ton of goods a day. In the circumstances, our client requests that as far as possible no fixed pitch hawkers be allocated in front of No.5, Tai Yuen Street."

43. By letter dated 3 October 1980, the Department replied to the following effect :

" An investigation carried out by my staff has revealed that a width of about 9 feet has been provided in front of Yook Tong Electric Co. Ltd. of No.5 Tai Yuen Street, Wan Chai, your client's shop. This is considered good enough for loading and unloading purpose and no obstruction to the premises in question is considered to arise."

44. On behalf of the applicant, Mr Wong submitted that this brief correspondence concerning the demarcation of hawkers' stalls amounted to a clear and unequivocal representation (or promise) by Government that the applicant would be given an unobstructed space in front of its premises for the purpose of loading and unloading goods from vehicles. The applicant, he said, relied on this representation and accordingly the representation gave rise to a legitimate expectation which the Commissioner had to take into account as a relevant consideration in coming to his decision whether or not to designate that part of Tai Yuen Street in front of the applicant's building to be a 'prohibited zone'. The Commissioner, said Mr Wong, failed to take that legitimate expectation into account. That failure resulted in such unfairness to the applicant that it constituted an abuse of power justifying intervention by the court.

45. It has not been suggested by the applicant that in 1980 the Urban Council & Urban Services Department had responsibility for regulating traffic. The applicant's case is advanced therefore on the basis that, if one arm of the Executive makes an unambiguous representation as to future conduct, that representation is always binding generally on the Executive. In my judgment, however, in looking to the nature and extent of any representation, the fact that it was made by one arm of the Executive, which perhaps has only limited authority, can properly be taken into account if it is alleged that the representation binds another or all arms of the Executive. Government today is not a monolith; it has many divisions, departments, boards, offices and the like, all with their own powers. That, factually at least, when it is relevant, must be acknowledged. I find support for this in the judgment of Sullivan J in R v. Secretary of State for the Home Department, ex parte Mapere [2001] Imm AR 89, a case in which the applicant said that he had received assurances as to his right to enter the United Kingdom from an officer in the British High Commission in Zimbabwe, those assurances not being taken into account by the Chief Immigration Officer when the applicant was later refused entry to the United Kingdom. Sullivan J observed :

"It is submitted that in order for a legitimate expectation to arise, it has to be founded on some promise or policy statement or practice made by the relevant decision-maker: see CCSU v Minister for Civil Service [1985] 1 AC 374, [1984] 3 All ER 935 the speech of Lord Diplock at page 408 letters D to H; R v IRC ex parte MFK Underwriting Agents Ltd [1990] 1 All ER 91, [1990] 1 WLR 1545 per Bingham LJ (as he then was) at pages 1566A to C and 1569H.

It is submitted that a legitimate expectation cannot be founded upon a representation or assurance given by someone other than the relevant, authorised decision-maker. This limitation upon the ambit of a legitimate expectation reflects the basis of the doctrine, ie the decision-makers duty of fairness, and considerations of abuse of power by the decision-maker: see R v North and East Devon Health Authority ex parte Coughlan [2000] 3 All ER 850, [2000] 2 WLR 622, paras 79 to 81. It also reflects the principle that the courts will not unduly trammel the executives policy-making powers: see Coughlan para 82.

Against that background, it is submitted that it would be wrong in principle for courts to rule that a decision-makers discretion should be limited by an assurance given by some other person. I entirely accept the validity of that argument in principle."

[my emphasis]

46. As I have noted, nothing has been placed before me to suggest that the Urban Council & Urban Services Department had authority in 1980 to regulate traffic or that it purported to have such authority. That is important because, in substance, the applicant says that the representation made by the Department in 1980 amounted not just to a representation to regulate the placement of hawkers' stalls but to a representation that Government would continue to ensure vehicle access to Tai Yuen Street, such access to include the right to park outside the applicant's building.

47. In Ng Siu Tung & Others v. Director of Immigration [2002] 1 HKLRD 561, a judgment of the Court of Final Appeal, Li CJ, Chan and Ribeiro PJJ and Sir Anthony Mason NPJ observed (at 602) :

" Though the concept of 'legitimate expectation' is somewhat lacking in precision, it is now firmly established that to be legitimate, the expectation must be reasonable (A-G of Hong Kong v Ng Yuen Shin [1983] 2 AC 629 at p.636, per Lord Fraser of Tullybelton), that is, reasonable in the light of the official conduct which is said to have given rise to the expectation. Whether an expectation is legitimate in this sense depends, at least in part, upon the conduct of the relevant public authority and what it has committed itself to. Whether an expectation is legitimate, and to what extent, must also depend upon what the applicants are entitled to expect. The requirement of legitimacy means that judicial decisions 'must be founded not only on what the claimant factually expected, but also on what the claimant, bearing in mind any relevant considerations of policy and principle, was entitled to expect'."

The judges qualified this by confirming that, generally speaking, a representation relied upon to support a legitimate expectation must be clear and unambiguous.

48. In the present case, the correspondence to which I have referred was not directly related to the freedom of motor vehicles to enter Tai Yuen Street at all hours and to park along the street. The applicant's concern was related to the placement of hawkers' stalls. What it asked for was that no stalls be pitched in front of its building. The reply was to the effect that a space free of hawkers' stalls 9' in width had been provided for. The opinion was then expressed , and it was no more than an opinion, that a space of this size should be good enough for loading and unloading purposes. If any clear and unambiguous representation was made by the Urban Council & Urban Services Department, it was to the effect that a space free of hawkers' stalls would be maintained in front of the applicant's building. If the Department committed itself to anything, it can only reasonably be said to have committed itself to the future maintenance of that space.

49. While this commitment may have been made because the applicant said that it needed to load and unload goods from vehicles, I do not see how it can be extended by inference to a commitment also to maintain the status quo as to the right of vehicles to enter Tai Yuen Street at all hours of the day and to park there.

50. If the exchange of correspondence gave the applicant the entitlement to expect anything, it was no more than that stated by the Department; that is, to maintain a space free of hawkers' stalls. That being the case, the applicant has failed to establish that, if the correspondence gave rise to a legitimate expectation, it was clearly and unambiguously related to or can by reasonable inference be extended to matters of vehicle traffic regulation.

The applicant's third challenge constitutional right to the use of its property

51. It is contended on behalf of the applicant that the decisions of the Commissioner substantially diminished the applicant's right, constitutionally protected, to use its property. That being the case, the Commissioner was obliged, in his decision-making process, to give high priority to the applicant's constitutional right. The Commissioner failed to do so. His decisions are therefore vitiated.

52. As to the nature of the applicant's constitutional right to the use of its property, Mr Wong said that it was to be found in art.6 and art.105 of the Basic Law. During the course of argument, it became apparent, however, that the real substance of the applicant's challenge sprang from the wording of art.105 which, in so far as it is relevant, reads :

" 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."

53. The applicant is not the owner of the building at 5 Tai Yuen Street. The building is owned by an associate company, a distinct legal persona. Its 'property' in terms of s.105 must therefore be its business. Assuming, without in any way deciding the issue, that 'property' in terms of art.105 includes the economic interest in commercial enterprises, two questions arise for determination. First, have the Commissioner's decisions interfered with the applicant's right to use its property? Second, if there has been an interference contrary to art.105, has it amounted to a deprivation of the applicant's business, entitling it to compensation?

54. In determining the first question, it is necessary to define what use, if any, has been interfered with. As I have said, the applicant's building has no integral facilities for vehicles. At all times therefore the applicant, in running its business, has had to look to public facilities in so far as they permitted vehicles to draw up in front of or near its building. It shared these facilities with other members of the public. The applicant has never pretended to have any exclusive right to the use of the parking spaces in front of or near its building.

55. The facilities which it has shared have not been removed. They have been restricted. Vehicles may still enter Tai Yuen Street outside normal working hours. Nor can it be said that the restriction has prevented the applicant from receiving or delivering goods during normal working hours. That can still be done but the required vehicles may not park in Tai Yuen Street itself, they must park at alternative sites, the main one being just 38-40 metres from the applicant's premises.

56. What the applicant complains of therefore is that there has been a restriction placed on the public facilities that it has legitimately been able to exploit (in competition with other users) in order to enhance its business operations. The restriction on the use of those public facilities has resulted not in an inability to conduct business but rather in an inconvenience to the efficient conduct of that business. In a competitive trade, that inconvenience has led customers to use other suppliers.

57. It seems to me that art.105, while it affords protection to the applicant to use its property, does not extend to the use by the applicant of public facilities. As Mr Chow, for the Commissioner, expressed it : the applicant is not entitled to a guaranteed use of a public street to suit its business operations. If it was otherwise, it would mean that, if a business, for the enhancement of its operations, placed itself close to public facilities, it would thereby assume a constitutional right protected by art.105, in respect of those facilities. In my view, it would be misconceived to suggest that art.105 had any such purpose. Read with art.6, art.105 provides protection for the 'acquisition, use disposal and inheritance' of private property not property in the public domain.

58. But even if I am wrong in this regard, the use of property must always be subject to the principle of general regulation in the public interest and the actions of the Commissioner were of a regulatory nature carried out for the protection of the public.

59. I accept, of course, that in matters of this kind what counts is the substance of the matter not form. But, in looking to the substance, it is clear to me that there has been no hindrance or interference with the applicant's right to the use of its property.

60. During the course of submissions, Mr Wong, for the applicant, referred to a number of judgments of the European Court of Human Rights. He did so inter alia to illustrate that economic interests connected with the running of a business constituted 'property' and control over those economic interests may amount to an interference with 'property'.

61. In Tre Traktorer Aktiebolag v. Sweden 13 EHRR 309, the applicant company complained that the revocation by an administrative authority of its licence to sell alcoholic beverages constituted a violation of Art.1 of Protocol No.1 of the European Convention. Art.1 of Protocol No.1, however, is far more broadly worded than art.105 of the Basic Law, reading as follows :

"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."

[my emphasis]

62. The Court held that :

"(a) The economic interests connected with the running of a restaurant were possessions. The withdrawal of the licence interfered with the peaceful enjoyment of the applicant's possessions.

(b) The interference constituted a measure of control of the use of the applicant's property under the second paragraph of Article 1 of Protocol No.1"

However, the Court went on to find that :

"(c) The control of the use of the applicant's property pursued a legitimate aim in the general interest and there was no doubt as to the lawfulness of the revocation under Swedish law.

(d) There was no reason to exclude that the restaurant closed as a result of the revocation of the licence. The financial repercussions were serious because of the absence of a stay of execution. However, the burden placed on the applicant had to be weighed against the general interest. The state had a margin of appreciation. Having regard to the legitimate aim of the Swedish social policy concerning the consumption of alcohol, a fair balance had been struck between the economic interest of the applicant company and the general interest of the Swedish society."

63. Assuming that these principles may be applied to art.105, 'possessions' being equated to 'property', it must still be recognised that Tre Traktorer Aktiebolag v. Sweden was a case in which there had been a direct interference with the conduct of the applicant company's business; namely, the removal of a liquor licence without which the continued profitable operation of the business was simply not possible. That is a very different situation from the case under consideration, one in which the applicant's business has not been directly controlled by the exercise of public authority but instead has been prejudiced by a restricted access to public facilities, restrictions imposed in the public interest.

64. A second judgment cited was that of Loizidou v. Turkey 23 EHHR 513. But again I found little of value in it. The applicant, a Greek Cypriot, owned property in northern Cyprus but since 1974, a period of over 20 years, she had been denied access to the property by occupying Turkish forces. In respect of her challenge that there had been a violation of Art.1 of Protocol No.1, the Court said :

" ... since she has been refused access to the land since 1974, she had effectively lost all control as well as all possibilities to use and enjoy her property. The continuous denial of access must therefore be regarded as an interference with her rights under Article 1 of Protocol No.1. Such an interference cannot, in the exceptional circumstances of the present case, be regarded as either a deprivation of property or a control of use within the meaning of the first and second paragraphs of Article 1 of Protocol No.1. However, it clearly falls within the meaning of the first sentence of that provision as an interference with the peaceful enjoyment of possessions. In this respect the Court observes that hindrance can amount to a violation of the Convention just like a legal impediment."

I comment only that an absolute denial of access which has resulted in the owner losing all control of her property is very different from the case under consideration.

65. In the circumstances, I am satisfied that, in terms of art.105, the Commissioner's decisions have not interfered with the applicant's right to use its property. It must follow that any restrictions imposed by the Commissioner do not amount to a deprivation of the applicant's property, entitling it to compensation. I base this on a number of authorities but I need cite only the dicta of Lord Hoffmann in Grape Bay Ltd v. Attorney-General of Bermuda [2000] 1 WLR 574, at 583 :

" It is well settled that restrictions on the use of property imposed in the public interest by general regulatory laws do not constitute a deprivation of that property for which compensation should be paid. The best example is planning control (Westminster Bank Ltd. v. Beverley Borough Council [1971] A.C. 508) or, in American terminology, zoning laws (Village of Euclid v. Ambler Realty Co. (1926) 272 U.S. 365). The give and take of civil society frequently requires that the exercise of private rights should be restricted in the general public interest. The principles which underlie the right of the individual not to be deprived of his property without compensation are, first, that some public interest is necessary to justify the taking of private property for the benefit of the state and, secondly, that when the public interest does so require, the loss should not fall upon the individual whose property has been taken but should be borne by the public as a whole. But these principles do not require the payment of compensation to anyone whose private rights are restricted by legislation of general application which is enacted for the public benefit. This is so even if, as will inevitably be the case, the legislation in general terms affects some people more than others. For example, rent control legislation restricts only the rights of those who happen to be landlords but nevertheless falls within the general principle that compensation will not be payable. Likewise in Penn Central Transportation Co. v. New York City (1978) 438 U.S. 104, the New York City's Landmarks Preservation Law restricted only the rights of those people whose buildings happened to have been designated historic landmarks. Nevertheless the Supreme Court of the United States held that it was a general law passed in the public interest which did not violate the Fifth Amendment prohibition on taking private property without compensation."

The applicant's fourth challenge the decisions of the Commissioner were 'Wednesbury' unreasonable

66. In criticising the decisions of the Commissioner for being Wednesbury unreasonable, Mr Wong urged the court to give those decisions 'anxious scrutiny'. This is because the fundamental rights of the applicant, those protected by the Basic Law, have been infringed. However, for the reasons given earlier, I do not accept that there has been any infringement of the applicant's fundamental rights. Accordingly, the decisions of the Commissioner fall for consideration on ordinary Wednesbury principles. It is therefore for the applicant to demonstrate that the decisions of the Commissioner were so flawed that no reasonable decision-maker could have reached those decisions.

67. It is not for this court to usurp the administrative powers of the Commissioner nor to interfere because the decisions were lawfully made but are complained of only as being unwise or unfair to the applicant. In this latter regard, I refer to the dicta of Lord Hoffmann in Grape Bay (supra, para.65) in which he observed that inevitably the exercise of regulatory powers which restrict the use of property in the public interest will affect some people more than others. That, however, is a necessary consequence of the give and take of civil society.

68. I now turn to the individual challenges made by the applicant as to the reasonableness of the Commissioner's decisions.

a. Previous temporary closures

69. The affirmation dated 5 June 2002 of Mr Chan Kam Shun, a member of the Transport Department, has detailed the various matters taken into consideration by the Commissioner in reaching his decision to designate the greater length of Tai Yuen Street as a 'prohibited zone'. In that affirmation, the following is stated :

" The Commissioner had also considered 2 previous instances in which Tai Yuen Street was temporarily closed. On the first occasion in February 2001, the subject section of Tai Yuen Street was temporarily closed between 10:00 a.m. on 12 February 2001 to 6:00 p.m. on 17 February 2001 to facilitate the construction of water supply works. On the second occasion in April 2001, the same section of Tai Yuen Street was temporarily closed again between 10:00 a.m. on 9 April 2001 and 6:00 p.m. on 18 April 2001. During these two temporary complete closures of the subject section of Tai Yuen Street, I was not aware of any complaints or objection from either the public or the shop owners on Tai Yuen Street."

70. This, submitted Mr Wong, was a totally irrelevant consideration. A temporary closure of the street for purposes of repairs or reconstruction can have no bearing whatsoever on a decision to permanently restrict access.

71. I am unable to agree. The fact that in the months preceding the designation the street had been closed to traffic on two occasions (once for five days, once for nine) without recorded complaint is, having regard to all the circumstances, a factor which, in my view, a decision-maker would reasonably have been able to take into account. Put at its lowest, it shows that in a busy and congested street the previous temporary closures had not caused such immediate and damaging disruption that they elicited complaints. How much weight was given to the lack of reaction to the previous closures is a different issue. But there is no evidence to show that the Commissioner gave it any form of unreasonably undue weight.

b. The failure to accurately interpret accident data

72. The Commissioner's reason for designating the greater length of Tai Yuen Street as a 'prohibited zone' was to ensure pedestrian safety. The need to look to pedestrian safety in the street arose from a study of accident data relevant to the street and its immediate environs. Mr Wong heavily criticised the analysis of that data. The Commissioner's 'assumption' that injuries had been caused by delivery vehicles, he said, was wholly erroneous. Of the 50 accidents that took place between 1996 and 2000, 94% were caused by private cars or taxis; only two were caused by light goods vehicles and one by a medium goods vehicle.

73. On the evidence, however, I fail to see where it is shown that the Commissioner made any 'assumption' that a material number of injuries had been caused by delivery trucks. The 'prohibited zone' was designated in respect of all vehicles, private cars as well as commercial ones.

74. The purpose of accident data, when it is employed to help determine future action, is to assist the Commissioner in identifying areas where potentially there may be further accidents so that steps may be taken to ensure the public welfare. The fact that historically commercial vehicles may not have contributed materially to the toll of injuries does not mean that potentially they, together with private vehicles, may not constitute a real danger to pedestrian safety. As Mr Chow, for the Commissioner, expressed it : it can hardly be contended that lorries or trucks by their nature carry a lower risk of accidents compared to private cars or taxis. In any event, said Mr Chow, the cause of the accidents in the past was identified as impatient driving and obstruction of vehicles caused by hawker activities on the narrow streets, causes springing from the behaviour of people not machines.

75. In his careful analysis of the accident data, Mr Wong pointed to certain inaccuracies relied upon by the Commissioner. Those inaccuracies, in so far as I found them to be so, must be taken into account. I am satisfied, however, that they are not material and, if avoided at the time, would not, nor could, have made any difference to decisions made on the basis of the accident data.

c. 'Insisting' on alternative loading and unloading sites

76. In his affirmation of 5 June 2002, Mr Chan Kam Shun said that one of the factors that influenced the Commissioner to designate the greater length of Tai Yuen Street as a 'prohibited zone' was the availability of alternative parking sites. In this regard, the affirmation reads :

" The Commissioner is also alive to the existence of shops and business premises and domestic premises on Tai Yuen Street, the loading and unloading needs of the shops and the possible inconvenience which may follow if the section of Tai Yuen Street is designated as a prohibited zone for the period of 10:00 a.m. to 6:00 p.m. daily. The availability of alternative loading and unloading places in the vicinity is an important consideration in our decision making process in designating the prohibited zone. So far as loading and unloading activities are concerned, I was convinced that there were alternative loading and unloading places in the vicinity of Tai Yuen Street to cope with such demands from local shops and households within the prohibition period. Such alternative loading and unloading places include the southern kerbside of Johnston Road near the junction with Tai Yuen Street, Spring Garden Lane, Cross Street and McGregor Street. Furthermore, loading and unloading on Tai Yuen Street itself was permissible outside the prohibition period, i.e. before 10:00 a.m. and after 6:00 p.m. Since the Commissioner's primary concern is to safeguard pedestrian safety, the Commissioner considers that the designation of the prohibited zone is necessary."

Of importance, the affirmation of Mr Chan continued by saying that, having taken into consideration the various factors detailed, the Commissioner

"... was satisfied that the prohibition period imposed had struck a balance between the demands for loading and unloading and pedestrian safety."

77. The complaint has been made on behalf of the applicant that, in 'insisting' on alternative sites, the Commissioner failed to consider the 'insufficiency' of those sites, in particular that the principal site on Johnston Road (close to the applicant's premises) was only some 'three-to-four car spaces' in length and was constantly sought after by other operators wishing to load and unload goods. In making the complaint, however, the applicant made no suggestion that it had in the past always been guaranteed access to the parking spaces on Tai Yuen Street. The reasonable inference must be that there has always been a degree of competition for loading and off-loading sites in the area, Tai Yuen Street being no exception.

78. In any event, in my judgment, the complaint is misconceived. There is no evidence to suggest that the Commissioner was ignorant of the road conditions in the area or of the fact that parking sites were, by the very nature of the area, limited in size and availability. It must therefore be taken that the relevant decisions were made in the knowledge of local conditions. The Commissioner made a decision that the alternative sites were sufficient to cope with local demand between 10:00 a.m. and 6:00 p.m. before Tai Yuen Street opened again to traffic. That was his decision to make. Nothing has been put before me to suggest it was so unreasonable as to be irrational in the Wednesbury sense. Whether the decision was wise, whether it was one which another decision-maker would have reached, is not to the point.

79. What must be remembered is that the Commissioner was at all times conducting a balancing exercise, weighing the competing demands of commercial needs and public safety. His decision that alternative sites could cope during the prohibited hours must be seen not only in light of the geographical realities but also in light of those competing demands. It appears to me that he did not have the luxury of looking to the best of all worlds but was engaged in an exercise in compromise.

d. 'Insisting' that delivery times be rescheduled

80. When the applicant's objection to the designation of the greater length of Tai Yuen Street as a 'prohibited zone' was rejected, it sought to lessen the prejudicial affect on its business operations by seeking the issue to it of four exemption permits. But as I have said earlier (see paras.12 and 13), the Commissioner, in the exercise of his discretion, declined to issue any such permits, the principal reason being that to do so would defeat the purpose of designating Tai Yuen Street as a 'prohibited zone'.

81. In explaining why the Commissioner declined to issue permits to the applicant, Mr Tsang Yuk Kee, an advisor to the Commissioner, in an affirmation dated 10 June 2002, said the following :

" During the processing of the Application, I have taken into account the following considerations :-

(a) issue of prohibited zone permits would defeat or undermine the purpose of designating the prohibited zone which is to prohibit the entry of motor vehicles within the period from 10:00 a.m. to 6:00 p.m. in order to enhance pedestrian safety; and

(b) any loading/unloading activities could be conducted by the affected persons outside the prohibited period."

[my emphasis]

Mr Tsang continued :

" Having carefully considered the above matters and weighed the protection of public interest with the Applicant's interest in respect of its alleged business requirements regarding vehicular access to its shop and the possible inconvenience to the Applicant as a result of the imposition of the prohibited zone, I concluded that the Applicant's Application should not be approved. However, the Department was prepared to receive and consider any further representations which the Applicant may wish to render for further reconsideration of the Application."

82. The applicant appealed the original decision to refuse the issue of permits. This appeal was considered by Mr Cheung Oi Ling, a more senior officer in the department of the Commissioner. In an affirmation dated 5 June 2002, (to which reference has already been made in para.24) Mr Cheung said :

" Under the Road Traffic Ordinance or its subsidiary legislation, no procedure is prescribed for appeal by an applicant for prohibited zone permit whose application is refused by the Commissioner. Upon receipt of the Letter, I proceeded on the basis of a reconsideration of the Applicant's application for prohibited zone permit taking into account the further information and grounds supplied by the Applicant in the Letter.

I had carefully reconsidered the justifications raised in the Letter, but was not convinced that loading/unloading of any such bulky goods to or from the Applicant's shop could not be rearranged outside the prohibition period i.e. before 10:00 a.m. or after 6:00 p.m. Even if there was a genuine need for the Applicant to arrange such deliveries to his shop in Tai Yuen Street within the prohibition period, the handling of the bulky goods manually from the alternative loading/unloading place on Johnston Road would pose a lesser hazard to the pedestrians when compared with the alternative (on the assumption that the applicant is granted the permits) of allowing the Applicant's delivery trucks to drive through the heavily crowded section of Tai Yuen Street from Queen's Road East. The Applicant's shop is about 140 metres from Queen's Road East in distance and covered the heavily crowded section of Tai Yuen Street. On the other hand, the alternative loading/unloading place on Johnston Road near the junction with Tai Yuen Street is only about 40 metres from the Applicant's shop."

Mr Cheung continued :

" I am well aware that the designation of the prohibited zone is based on the necessity to safeguard pedestrian safety at Tai Yuen Street which is a very congested road at daytime. I am also alive to the possible inconvenience to shop owners/proprietors at Tai Yuen Street, including the Applicant, because their loading and unloading activities could not be done at Tai Yuen Street during the prohibition period. However, having considered the grounds submitted on behalf of the Applicant, I am not satisfied that the grounds are sufficiently convincing as to why the loading and unloading activities of the Applicant could not be conducted outside the prohibition period, and, if such activities are to be conducted within the prohibition period, why the activities could not be conducted at an alternative site along the southern kerbside near the junction of Johnston Road and Tai Yuen Street.

Furthermore, the Department has a duty to uphold pedestrian safety wherever it is at stake..."

83. The complaint has been made that the decisions to refuse the permits were unsupported by reason, were arbitrary and unreasonable. They were arbitrary because the hardship to the applicant was ignored and the reasons why it could not reschedule its loading and off-loading times were ignored.

84. As with its other complaints, it seems to me that the applicant has again, in essence, challenged the wisdom of the Commissioner's decision.

85. Even if the initial decision to refuse the permits was not supported by the most cogent reasoning, I fail to see how the decision on appeal can be said to be arbitrary, perverse or devoid of reason. The Commissioner had to conduct a difficult balancing exercise. Mr Cheung stated clearly in his affirmation that he was 'alive to' the difficulties faced by the applicant. He came to a decision, however, one which the Commissioner endorsed, that, even if there was a genuine need for the applicant to arrange deliveries during the prohibition period, the handling of those goods manually from an alternative site (such as Johnston Road, just 38-40 metres away) would pose less of a hazard than bringing delivery trucks along almost the full length of Tai Yuen Street when the street could be expected to be crowded with hawkers and pedestrians using the street (naturally enough) as effectively a pedestrian mall. That assessment may be patently correct or it may be open to debate, perhaps heatedly so. But that is not to the point. The assessment fell for the Commissioner to make and I can find nothing to suggest that it was a decision blighted in the manner submitted on behalf of the applicant by Mr Wong.

86. As a postscript, it should be said that the applicant also challenged the finding that it was less hazardous to manually move goods to and from alternative sites than to bring vehicles down Tai Yuen Street. Mr Wong said that the hazards involved in manual handling are obvious. They relate to the bulk of the goods, their length and sharp edges, and to the congestion of the area through which the goods have to be manhandled or pushed along on trolleys. That may well be so. But those speaking for the Commissioner have never suggested that the compromise arrived at was ideal. It is, however, a compromise, one reached by balancing competing factors. I repeat that it is not for this court to usurp the powers of the Commissioner by analysing the merits of that decision. There is certainly nothing on the face of the decision to suggest that it was in any way irrational. Heavily loaded vehicles moving down a narrow, crowded street used essentially as a pedestrian mall self-evidently, I would think, pose a risk. Assessing the degree of that risk weighed against the alternatives is a matter the legislature has placed in the hands of the Commissioner not this court.

e. Refusing to issue permits on ground that to do so would defeat the purpose of the 'prohibited zone'

87. The Commissioner made the assessment that to issue exemption permits to the applicant would defeat the purpose of designating the greater length of Tai Yuen Street a 'prohibited zone'. Mr Wong has criticised the adoption of that viewpoint as being plainly wrong. The legislation provides for the issue of exemption permits, he said, so how can it be said that to issue them would defeat the designation?

88. he Commissioner's assessment. That assessment was made in light of the circumstances prevailing in and around Tai Yuen Street. Nothing placed before me has suggested that the Commissioner has, as a matter of principle, refused in all circumstances to issue exemption permits no matter where in Hong Kong he may have imposed 'prohibited zones'. In Tai Yuen Street, having regard to the factors already exhaustively spoken of in this judgment relating to that particular area, the Commissioner came to the view that to issue the permits would undermine the purpose for which the street was closed to traffic during business hours. I can find nothing to suggest that that decision was Wednesbury unreasonable in constituting some form of blanket refusal to issue permits whenever or wherever a 'prohibited zone' had been designated.

89. Mr Wong has said that the willingness of the Commissioner to consider further applications made by the applicant for permits is evidence that the first decision must have been fatally flawed. I reject that submission. It demonstrates nothing more than that the Commissioner is prepared to keep an open mind on the matter and will consider further applications if, no doubt, they are fashioned so that they are more acceptable or, in the view of the Commissioner, circumstances have changed.

f. In refusing permits there was a failure to separately consider the applicant's case

90. In a letter to the applicant's solicitors dated 10 September 2001, a letter written in response to the request for the issue of exemption permits, the following was written on behalf of the Commissioner :

" We understand that the designation of the prohibited zone at Tai Yuen Street (the section between Johnston Road and the carpark entrance/exit of CEF Life Tower) would cause inconvenience to the shop owners to a certain extend. However, your client has not been prejudiced as the prohibited zone applies to all vehicles. To improve pedestrian safety at Tai Yuen Street, we consider the designation of the prohibited zone necessary. Issuing of exemption permits to vehicles to enter this section of road would defeat the original purpose.

We have carefully examined your points raised against our rejection to your client's application. However, having considered that there are alternatives for your client as he could carry out the delivery of goods outside the effective hours of the prohibited zone or along the kerb near the junction of Johnston Road and Tai Yuen Street, we regret to inform you that your client's application is not approved."

[my emphasis]

91. That response, submitted Mr Wong, reveals the failure on the Commissioner's part to look to the particular circumstances of the applicant's case. It reveals that the decision made by the Commissioner to issue exemption permits was irrational because it failed to distinguish between different users of Tai Yuen Street with markedly different needs.

92. In my judgment, however, the letter, when read in context, means no more than that the applicant has not been singled out for discrimination because the prohibited zone applies to all vehicles wishing to use the street. The word 'prejudiced' clearly is used incorrectly. But, as courts exercising supervisory jurisdiction in matters of this kind have said on many occasions, little purpose is served in dissecting correspondence of administrators as if they were words contained in judicial judgments. It is essential to look to the clear meaning and intent. Clearly here, prejudice was intended to be equated with discrimination.

93. It was, I am told, in terms of a letter dated 10 December 2001 that the refusal to issue permits was formally notified to the applicant's solicitors. That letter clearly considers the applicant's case upon its own individual merits, albeit assessed in the context of the broader public need. It reads :

" To improve pedestrian safety, the section of Tai Yuen Street between Johnston Road and the car park entrance/exit of CEF Life Tower has been designated a prohibited zone to all vehicles from 10.00 a.m. to 6.00 p.m. daily since June 2001. Although I appreciate the need of your client to carry out loading/unloading activities at Tai Yuen Street during the prohibited zone period, I regret to inform you that the application for prohibited zone permit is not approved because:

(a) it will adversely affect pedestrian safety by allowing vehicles to enter the section of Tai Yuen Street between Johnston Road and the car park entrance/exit of CEF Life Tower during the prohibited zone period; and

(b) your client has the alternatives to carry out loading/unloading activities at Tai Yuen Street outside the prohibited zone period, or on the southern kerbside of Johnston Road near its junction with Tai Yuen Street from 10.00 a.m. to 6.00 p.m.

g. The refusal to issue permits was substantively unfair to the applicant and/or discriminatory

94. For the applicant, Mr Wong submitted that the refusal to remove the 'prohibited zone' designation and the refusal to issue the applicant with exemption permits resulted in a gross and conspicuous unfairness to it, an unfairness which was also discriminatory. This unfairness and/or discrimination arose from the following matters, all related to the presence of hawkers

(a) The applicant itself had done nothing to cause the congestion in Tai Yuen Street. The fault for this lay with the hawkers who had unlawfully expanded their stalls and obstructed the road.

(b) The applicant was made to suffer because the Department of Food and Environmental Hygiene had failed properly to regulate hawker activities.

(c) Tai Yuen Street, by reason of Government action, had been singled out as a 'dumping ground' for unwanted hawkers, meaning that shops in other streets were able to enjoy unobstructed vehicle access while the applicant was deprived of it.

(d) The Government should have taken steps to move hawkers out of Tai Yuen Street into nearby side streets which have the capacity to absorb more hawker stalls thereby reducing the congestion in Tai Yuen Street itself.

95. In addition, Mr Wong submitted that the applicant was discriminated against by the Commissioner who ensured that the 'prohibited zone' did not include a building called the CEF Life Tower. Not only did the CEF Life Tower, situated near the Queen's Road East entrance to Tai Yuen Street, enjoy two-way motor traffic 24 hours a day, hawkers' stalls in front of the building were moved further along Tai Yuen Street towards the applicant's building, aggravating congestion towards the Johnston Road end of the street.

96. The determination of these challenges requires a consideration of the prevailing law, specifically as to whether unfairness, not as a procedural matter but as the product of an administrative decision, can give rise to a cause of action.

97. While legal authority demonstrates that unfairness which amounts to an abuse of power is unlawful and while obviously unfairness may, depending on the facts of a particular case, be taken into account in deciding whether a decision is or is not Wednesbury unreasonable, there is not at this time any general principle of public law that a decision may be quashed simply because it is considered unfair to an applicant. The principle is clearly stated by Lord Browne-Wilkinson in R v. Secretary of State for the Home Department, ex parte Pierson [1998] AC 539, at 575 :

" For myself, I find it distasteful that a prisoner who has been told the appropriate period of punishment for his crime can then be told, possibly many years later, that such punishment has been increased. But the legality of the Home Secretary's policy (which is the only proper concern of the courts) does not depend on the preferences and perceptions of individual judges. There is no general principle yet established that the courts have any right to quash administrative decisions on the simple ground that the decision is unfair. The wide words of the statutory discretion are not to be cut down further than is necessary to conform to the generally accepted principles of the general law. Parliament having chosen to confer wide powers on the Secretary of State intends those powers to be exercised by him in accordance with his standards. If the courts seek to limit the ambit of such powers so as to accord with the individual judge's concepts of fairness they will be indirectly arrogating to the court a right to veto a decision conferred by Parliament on the Secretary of State. Only if it can be shown that a general principle of the law would be infringed by giving the statutory words their literal meaning is it legitimate for the courts to construe the statutory words as being impliedly limited."

98. The dicta of Lord Browne-Wilkinson springs from a line of earlier authorities, for example, the observations of Lord Roskill in the 1985 decision of the House of Lords in Council of Civil Service Unions v. Minister for the Civil Service [1985] 1 AC 374, at 414 :

" ... executive action will be the subject of judicial review on three separate grounds. The first is where the authority concerned has been guilty of an error of law in its action as for example purporting to exercise a power which in law it does not possess. The second is where it exercises a power in so unreasonable a manner that the exercise becomes open to review upon what are called, in lawyers' shorthand, Wednesbury principles (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223). The third is where it has acted contrary to what are often called 'principles of natural justice.' As to this last, the use of this phrase is no doubt hallowed by time and much judicial repetition, but it is a phrase often widely misunderstood and therefore as often misused. That phrase perhaps might now be allowed to find a permanent resting-place and be better replaced by speaking of a duty to act fairly. But that latter phrase must not in its turn be misunderstood or misused. It is not for the courts to determine whether a particular policy or particular decisions taken in fulfilment of that policy are fair. They are only concerned with the manner in which those decisions have been taken and the extent of the duty to act fairly will vary greatly from case to case as indeed the decided cases since 1950 consistently show. Many features will come into play including the nature of the decision and the relationship of those involved on either side before the decision was taken." [my emphasis]

99. Accordingly, unfairness, on its own, when it is the product of a substantive decision (as opposed to a procedural one), does not constitute a ground of challenge. In R v. Inland Revenue Commissioners, ex parte Unilever Plc [1996] STC 681, at 680, Sir Thomas Bingham MR accepted in general terms the following propositions made by counsel, all of which he considered reflected high authority and rested on sound legal principle :

" 'Unfairness' in public law is not used in a loose general sense (see MFK Underwriting [1989] STC 873 at 895, [1990] 1 WLR 1545 at 1573 per Judge J). Where substantive unfairness is alleged, it is necessary to show a recognised form of unfairness, such as departure from a ruling on which the taxpayer has relied or inconsistency prejudicial to the taxpayer (cf HTV Ltd v Price Commissioner [1976] ICR 170). The 'court cannot in the absence of exceptional circumstances decide to be unfair that which the commissioners by taking action against the taxpayer have determined to be fair' (see Preston v IRC [1985] STC 282 at 293, [1985] AC 835 at 864 per Lord Templeman)."

100. It has been argued on behalf of the applicant that it has been unfairly dealt with in that it has been discriminated against it. It has been made to sacrifice, as Mr Wong expressed it, for the benefit of others; that is, the many hawkers who ply their trade along Tai Yuen Street and the developments/owners of the CEF Life Tower. Discrimination may, of course, amount to an abuse of power or to a procedural unfairness. See, for example, R v. Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses Ltd [1982] 1 AC 617, at 651, in which Lord Scarman said :

"I do not accept that the principle of fairness in dealing with the affairs of taxpayers is a mere matter of desirable policy or moral obligation. ..... I am persuaded that the modern case law recognises a legal duty owed by the revenue to the general body of the taxpayers to treat taxpayers fairly; to use their discretionary powers so that, subject to the requirements of good management, discrimination between one group of taxpayers and another does not arise; to ensure that there are no favourites and no sacrificial victims." [my emphasis]

101. As always, however, it is a matter of balance. Any challenge based on discrimination must inevitably turn on its own facts. Again, I return to the observations of Lord Hoffmann in Grape Bay (supra, para.65) : when decisions are made in the general public interest some members of the public will be affected more than others; some to their benefit, some to their detriment. However, that does not amount to choosing 'favourites' and 'sacrificial victims'. It is rather one of the necessary consequences of looking to the general good.

102. In looking to the applicant's individual challenges, I first consider the complaint concerning the CEF Life Tower; namely, that it enjoys two-way traffic 24 hours a day and has no licensed hawkers' stalls in front of it. The substance of the applicant's complaint is that the developers/owners of the CEF Life Tower have been treated as 'favourites' by the Commissioner while the applicant has been cast in the role of 'sacrificial victim'.

103. But what must be remembered is that the CEF Life Tower, a relatively new building, contains a carpark within its precincts. When the building was erected, planning permission was given for that carpark. It is a facility which provides a direct benefit, certainly in terms of traffic control, to the immediate area. In such circumstances, I do not see how it can be said that the Commissioner's decision, which may have benefited the developers/owners of the CEF Life Tower, but was made with a view to ensuring the retention of a valuable facility for the general benefit of the area, should be quashed on the grounds that it is discriminatory.

104. I turn now to the final challenge, that concerning the presence of hawkers in Tai Yuen Street and the applicant's contention that the Government the Commissioner being one arm of Government has failed over the years to resolve the hawker problem, the result being the visitation of a gross or substantive unfairness upon the applicant.

105. Mr Wong has mounted a challenge against Government policy generally in the handling of the hawker issue in and around Tai Yuen Street. However, for him to succeed in that challenge, it must be demonstrated that the Government, in its handling of the issue, has abused its powers and that such abuse has resulted in the unfair treatment of which the applicant complains. Only in exceptional circumstances can such a challenge succeed. In my judgment, neither an abuse of power by the Commissioner nor by Government generally has been shown. I can find no grounds, let alone exceptional grounds, for suggesting that the Commissioner's decisions concerning the designation of a 'prohibited zone' in Tai Yuen Street should be quashed because those decisions were made against the backdrop of a difficult history concerning the management of hawkers in Wanchai over the past 20 years or more.

106. The submissions made by the applicant ignore the fact that historically hawkers have fulfilled a legitimate role in the functioning of the Wanchai area. They have, over a period of many years, not only been condoned by Government, they have been licensed by Government to fulfil what Government has clearly considered to be a useful function. Expressed bluntly, licensed hawkers too have a right to a presence in and around Tai Yuen Street along with the applicant and other established operators of shops and businesses.

107. Mr Leung Yuen Sheung, a Chief Health Inspector of the Wanchai District Office of the Food and Environmental Hygiene Department, in his affirmations dated 5 June and 11 October 2002, has said that the root of the problem has always been that the limited road space in Tai Yuen Street is insufficient to fully satisfy the needs of the various competing users. Mr Leung has said that both hawkers and shop keepers have caused obstructions; not only hawkers are to be blamed

" From time to time, [my] Department has taken out appropriate enforcement actions against the hawkers in the area of Tai Yuen Street/Cross Street for causing obstruction or breach of licensing conditions. However, our observation also revealed that the shop operators themselves at Tai Yuen Street/Cross Street also caused obstruction problem by either placing merchandise/equipment on the pavements. In this regard, special tidy-up operations with the assistance of Police were mounted from time to time to tackle the obstruction problem caused by both the shop operators and hawkers trading at Tai Yuen Street/Cross Street. An average of 2 operations per month would be conducted and the frequency of operations may increase if the situation requires. Over the past 2 years, 157 and 146 prosecutions were taken against the licensed hawkers and the shop operators trading at the area respectively."

108. In his affirmations, Mr Leung has outlined the history of Government's attempts to deal fairly with the hawker issue; he has spoken of past relocation exercises, carefully planned and endorsed by organizations such as the Wanchai District Board and the Markets and Street Traders Select Committee of the former Urban Council. Mr Leung has spoken of on-going plans to rationalise the situation. He has spoken of control measures being taken in the meantime

109. The applicant may be able to criticise Government policies for a number of reasons but, in my view, none can reach so high as to constitute a substantiated criticism of abuse of power.

110. Critically, of course, the Commissioner has a duty to act while the problem exists to ensure public safety. He has chosen to exercise that duty in a manner which he believes will best fulfil his responsibility. I do not see how that can be described as an abuse of power.

Conclusion

111. For the reasons given in this judgment, the application for judicial review is dismissed. There will be an order nisi awarding costs to the respondent, that order to be made final 30 days after the handing down of this judgment unless the matter is set down for argument prior to that date.