MAN YEE TRANSPORTATION BUS CO., LTD v. THE TRANSPORT TRIBUNAL AND ANOTHER

HCAL 30/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 30 OF 2013

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D E C I S I O N

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1. By a Form 86 dated 4 February 2013, the applicant applied for leave to commence judicial review proceedings against :

(1)   the decision of the Transport Tribunal (“the Tribunal”) dated 5 November 2012 refusing to re-open its case (“the 1^st Decision”);

(2)   the decision of the Tribunal dated 17 December 2012 maintaining the 1^st Decision (“the 2^nd Decision”); and

(3)   the decision of the Commissioner for Transport (“the Commissioner”) dated 8 November 2012 to :

(a)   suspend the applicant’s passenger service licence No.7857A (“PSL”) in respect of the public bus with registration number RP7238, which was registered under the PSL;

(b)   cancel the vehicle licence of RP7238 (“the Commissioner’s Decision”).

2. The applicant seeks an order of certiorari to quash all the above Decisions.

3. The facts have been sufficiently set out in the Form 86.  I shall not repeat them here.

4. I think the present leave application can be disposed of shortly.

5. The Tribunal’s decision not to postpone the review any further on 5 July 2012 is not subject to any challenge.  Any challenge is in any event doomed to failure.  For even taking the applicant’s case at its highest, the medical certificate issued on that day did not reach the Tribunal before the proceedings were concluded.  When the Tribunal decided not to postpone the review any further, it was simply not aware of the fact that because of urgent medical reason, Mr Yip, the authorized representative of the applicant, was unable to attend the review.  Its decision not to postpone the review any further cannot be flawed.

6. Under Section 34(4) of the Road Traffic Ordinance, since the applicant did not appear on 5 July 2012, its review is deemed to have been withdrawn.  The withdrawal of the review does not involve any decision on the part of the Tribunal at all.  That is simply an operation of the deeming provision.  The Ordinance contains no further provision for any future step to be taken in the proceedings before the Tribunal after a review is deemed to have been withdrawn, which must mean that the matter ends there.  In the absence of any enabling provision in Ordinance, the applicant could not apply to re-open the review which had been deemed to have been withdrawn.

7. The applicant relies on section 20 of the Ordinance.  However, such reliance is misplaced.  Section 20 deals with the practice and procedure of a hearing before the Tribunal.  But after a review has been deemed to have been withdrawn, the hearing is concluded.  Section 20 does not apply.  More fundamentally, the applicant must in the first place be entitled to apply to re-open a review which has been deemed to have been withdrawn before the Chairman of the Tribunal can decide if and how to entertain the application.  But as said, nothing in the Ordinance entitles the applicant to take out such an application.

8. Thus analyzed, the applicant’s challenge against the 1^st and 2^nd Decisions must fail in limine.  It follows that its challenge against the Commissioner’s decision must fail as well.

9. The applicant having failed to demonstrate a reasonably arguable case, its application for leave to apply for judicial review is refused.

(Submissions on Costs)

10. This application is wholly misconceived.  It is entirely unmeritorious as a matter of law.  The applicant should not have taken out this application.  Having done so and failed, it should be visited with an adverse costs order.  I order the applicant to pay the Commissioner costs, to be taxed if not agreed.  There will be no order as to costs between the applicant and the Tribunal.