YU SHU TUNG v. BUK CHEONG LOONG

[An owner of premises cannot complain of injury done to those premises caused as the necessary and inevitable result of the actions of persons acting under statutory authority; these include persons who, close to the wall of the premises, erect stalls on fixed pitches in a street under a licence from the local authority and thereby obstruct the use of the wall by the owner of the premises]

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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JUDGMENT

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1. This action concerns premises at the corner of Nathan Road and Nanking Street, Kowloon. The premises front on to Nathan Road and are known as 314 Nathan Road. Access to the shop on the ground floor of the premises is obtained from Nathan Road. The Nanking Street side wall ("the wall") is a blank wall. There is no opening in it.

2. The plaintiff (who appears by Counsel) is the owner of the ground floor shop. The shop is let to tenants, so the plaintiff's interest is a reversionary interest.

3. The defendants (who appear in person) are stall holders on Nanking Street. They have been there for over 20 years. Until recently they had permission from the tenants of the ground floor shop to attach their stalls to the wall. They also held licences from the Urban Council to locate their stalls on pitches on the pavement on which the wall abuts. Their current licences are issued, or are expressed to be issued, under powers conferred by the Public Health and Municipal Services Ordinance, Cap. 132 ("the ordinance"). Each licence is described as a "fixed pitch hawker licence (wall stall)".

4. In 1989 the defendants' permission to attach their stalls to the wall was withdrawn and they detached their stalls from the wall, re-erecting them however only some inches away from it, virtually against the wall. They retained and still retain their Urban Council licences.

5. The plaintiff's present tenant of the ground floor shop wants to be able to open up the wall by inserting windows and showcases in it and perhaps also an access opening to Nanking Street. The presence of the defendants' stalls make any such thing wholly impracticable.

6. The plaintiff can obtain from the tenant a higher rent for the ground floor shop if he can get rid of the defendants' stalls. He can get an extra HK$20,000 per month. The defendants should, he says, be ordered to remove their stalls and to pay the plaintiff damages for the injury being done to his reversion. The defendants say in answer that they are maintaining their stalls under lawful authority, i.e. their Urban Council licences, which permit them to keep their stalls where they are.

7. The plaintiff contends he has a right of access to Nanking Street which he enjoys in his capacity as owner of the ground floor shop and that this is a private right, including not only the right to pass from the shop directly to Nanking Street and vice versa but also the right to have advertisements, showcases and the like on the wall displayed to the uninterrupted viewing of the members of the public using Nanking Street. This contention is well-founded : compare Cobb v. Saxby [1914] 3 KB 822. The only question is whether the defendants have a good answer to it.

8. The maintenance by the defendants of their stalls on the pavement, only a few inches away from the wall, is an interference with the plaintiff's private right. Since that interference will continue indefinitely unless the defendants are restrained from continuing it, it does constitute an injury to the plaintiff's reversionary interest. If the matter rested there, I would have to grant the plaintiff the relief which he seeks. But the matter does not rest there.

9. The defendants say that, having regard to the length of time they have maintained their stalls against the wall, and to the licences which they hold from the Urban Council, their maintenance of these stalls is not wrongful.

10. I am afraid that the length of time throughout which the defendants have maintained their stalls on Nanking Street does not help them. They cannot have acquired by long user a right to do so, when until quite recently what they did was done with the permission of the tenants of the ground floor shop. It was not use adverse to the owner of the shop.

11. But that does not matter if, as they claim, the defendants are entitled to maintain their stalls on Nanking Street by proper authority lawfully conferred on them by the Urban Council. This is a much more difficult matter.

12. The licences expressly authorise the maintenance of the defendants' stalls on Nanking street. There is no way the stalls can be maintained where they are without interfering with the plaintiff's private rights to which I have referred. It follows in my opinion that the defendants have a good defence to this action if, but only if (1) the grant of the licences was an act within the Urban Council's powers; (2) the acts of the defendants are within the terms of the licences.

13. The Urban Council's powers to grant such licences derive from the ordinance. The statutory scheme, as I understand it, makes it illegal to hawk in any street except in accordance with a licence : see s. 83B(1). The "authority" (which is the Urban Council) may allocate pitches in a street to hawkers (other than itinerant hawkers) : see s.83B(5) (a). It can do this after the Commissioner of Transport, after consultation with the "authority" and the Commissioner of Police, has declared in writing that the street, or part of it, may be set aside for hawking purposes : see s.83B (4). The "authority" may make regulations providing (among other things) for the licensing of hawkers; for the allocation of pitches to licensed hawkers; and for the erection by any such hawkers of stalls on pitches so allocated : see s.83A (1) (a) and (g); but, so far as the ordinance is concerned, it appears there can be no allocation of pitches to licensed hawkers without the requirements of s.83A (4), requiring a declaration in writing from the Commissioner of Transport, being satisfied.

14. Regulations have been made under s.83A; these are the Hawker (Urban Council) By-laws. They provide (among other things) for the issue of fixed pitch hawker licences, including licences for wall stalls, such as have been issued to the defendants in this case: see By-law 8(1). A "wall stall" means a stall which is affixed to or placed against any external part of any building or similar structure and which faces onto a street : see the definition of "wall stall" in By-law 2.

15. Under By-law 27(1) the Council is given or is expressed to be given power to cause fixed pitches to be set aside in any place or street or in any "hawker permitted area" for the use of holders of fixed pitch hawker licences. (The Council has power under By-law 4(1)(a) by notice published in the Gazette to declare any street or part of a street set aside under s.83B or any part of any public place to be a "hawker permitted area" : but I have no evidence that it has exercised, or purported to exercise, this power in relation to Nanking Street or any part of it.)

16. It is arguable that By-law 27(1) is outside the powers conferred on the authority by the ordinance insofar as it purports to enable the Urban Council to cause fixed pitches to be set aside in any place or street other than one the subject of a declaration in writing under s.83B (4). When, in response to my request for more information about the matter, counsel for the plaintiff produced for my inspection a copy of the Hawker (Permitted Place) (Urban Council) (Consolidation) Declaration, it was found that it contained no reference to the pavement at the side of 314 Nanking Road. I have therefore no evidence that the defendants' stalls are erected in a street or part of a street set aside under s.83B (4) to be used for hawking purposes. On the other hand, the licences themselves are clear evidence that the Urban Council, in exercise, or purported exercise, of the powers conferred on it by By-laws 8(1) and 27(1), has set aside the defendants' pitches in a "place or street" for use by the defendants as holders of fixed pitch hawker licences: I must I think assume that the licences were granted in the proper exercise of the Urban Council's power; 2 cannot assume that the Urban Council was acting in excess of its powers.

17. The licences themselves are issued subject to conditions. One of these is Condition 10, which reads as follows :-

"10.    The licensee also clearly understands that the licence issued relates only to that part of the stall and pitch situated on Crown land; that any disputes over the use of any part of the stall (or pitch) situated on private land is not a matter for the Urban Council, and must be resolved between the licensee and the owner of the land; and that the Urban Council would disclaim any responsibility or liability in such a dispute. In particular, the licensee must bear in mind that the possession of a licence issued by the Urban Council does not confer on the holder any proprietary right against the private land owner or any other person claiming any right over the private land, for example, a tenant of the owner."

18. The last sentence of this makes it clear that the defendants cannot, .by virtue of the licences, claim any proprietary right against the plaintiff. But that is not what the defendants are seeking to do. Their claim is simply this, that in maintaining their stalls where they are they are acting under lawful authority. The effect of their doing so is necessarily and inevitably to obstruct the use of the wall by the occupier of the ground floor shop. But in the absence of negligence you cannot complain of any injury to your premises caused as the necessary and inevitable result of the actions of those acting under statutory authority : see Allen v. Gulf Oil Refining Company Limited [1983] AC 509.

19. For this reason I am of the opinion that the defendants have made out a good defence to the plaintiff's claim in this action.

20. There are however still some difficulties in the way of finally disposing of the case.

21. The plaintiff should I think be given a proper opportunity, if he wants to take it, to challenge the validity of the licences. That point has not been more than touched on before me. I propose to give the plaintiff a short period, say 28 days, to consider this possibility. The plaintiff will be at liberty to restore the action before me at any time before the expiration of that period if he decides that he does want to challenge the validity of the licences. Subject to that I must dismiss the action, and I propose to do so with costs. The order dismissing the action should not be drawn up until the end of the period to which I have referred; but it may be drawn up earlier on the application of the plaintiff if he wants that done, in order, for example, to facilitate any appeal.