TANG SHUK CHUN v. DIRECTOROF FOOD AND ENVIORNMENTAL HYGIENE

CACV 5/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 5 OF 2016

(ON APPEAL FROM HCAL NO. 30 OF 2015)

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JUDGMENT

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Hon Lam VP:

1.1.  I have read the draft of Yuen JA’s judgment and I agree with it. The outcome in this appeal highlights the importance for an applicant for judicial review to put all the cards on the table (viz exhausting all the grounds and materials the applicant intends to rely upon) at the hearing before the Court of First Instance. Though there are cases where this Court, due to the exceptional public importance involved, may allow new points to be raised or new materials to be placed before the court, it must be firmly stated that the threshold in meeting such exceptionality is high. This approach stems from the underlying rationale for promptitude in any application for judicial review. By the very nature of the legal process, by the time a matter comes to this Court, there is usually considerable time lapse from the date of the original administrative decision which is being challenged. This Court should not allow new grounds to be run lightly as the running of such new points would, in effect, circumvent the duty of an applicant to proceed with promptitude. Relaxation of such an approach without good and exceptional reason is not conducive to good public administration.

1.2.  In the present case, the decision of the FEHD was made in October 2014. The judge’s judgment was given in November 2015. The decision to permit the conversion has been implemented for more than 3 years by the time this appeal was heard on 8 November 2017. To permit a fresh challenge to such decision in such circumstances is inconsistent with established principles of public law. This Court should not permit such a course to be taken through the backdoor by allowing fresh points and fresh materials to be used in the appeal when, as explained by Yuen JA, those points and materials should be deployed, if the applicant so wished, two years ago when the matter was heard in the Court of First Instance.

Hon Yuen JA:

2.  This Judgment is written in English as that was the language used in the Court of First Instance judgment from which this is an appeal (the judgment of L Chan J given on 17 November 2015, hereinafter referred to as “the Judgment”).  If the appellant requires it, interpretation will be provided.

Background

3.  Madam Tang (“the appellant”) is the tenant of a stall in Cheung Chau Market (“the Market”).

4.1.  The Market is operated by the Department of Food and Environmental Hygiene (“FEHD”) in accordance with the Public Markets Regulation of the Public Health and Municipal Services Ordinance Cap.132. 

4.2.  FEHD has issued a manual (“the Operational Manual”), M29 of which provides for the establishment of a consultative committee for the management of markets (“MMCC”):

“29. Market Management Consultative Committees (27.10.2009)

(1) Market Management Consultative Committee (MMCC) should be established in public markets. MMCC holds regular meetings at QUARTERLY intervals to discuss a wide range of issues including but not limiting to letting of market stalls, use of market stalls, market tenancy and management matters, market improvement measures and market vibrancy enhancement.

(2) Membership of a MMCC is as follows:

(a) Departmental market staff

(i) Chief Health Inspector (Chairperson)

(ii) Senior Health Inspector/Health Inspector (Secretary)/Overseer

(b) Others

(i) Members of District Council;

(ii) Representatives of the stallholders of different trades, i.e. one representative of each of the trade categories who should be tenants or Registered Assistants authorized by the tenants to attend the meeting on his/her behalf;

(iii) Market management contractor/cleansing contractor and security services contractor; and

(iv) Representatives of Architectural Services Department, Electrical and Mechanical Services Department or other departments, as and when required.

(3) Other than the representatives of the stallholders, other stall tenants/Registered Assistants of the market concerned who have an interest to attend the MMCC meeting should be allowed.  Market Section should invite the standing members of the MMCC in writing at least 10 days before the meeting and remind them of the meeting schedule near the time.  For the purpose to impress other interested tenants to attend the meeting, notices should be posted in market notice boards and advise them to contact the Market Office for registration.”

4.3.  One of the matters that the MMCC is consulted on is application for conversion of the trade carried on from a stall.

2012 applications for conversion of trades

5.  In 2012, seven tenants of stalls in the Market applied to FEHD to convert the trades at their stalls from “food” to “non-food”. 

6.  M18 of the Operational Manual applies to such applications:

“18. Conversion of market stall from one category to another in existing stall

(1) The authority to approve the conversion of a market stall from the sale of one commodity to another is delegated to Superintendent (Market) 1.

(2) District should seek views from the Market Management Consultative Committee on the proposed change of trade before putting up the case to Superintendent (Market) 1 for consideration. Each case should be considered on its own merits.

(3) The conversion is normally only approved when:

(a) The stall has stood vacant for some time;

(b) The commodities which the stallholder intends to sell are compatible with those being sold in the immediate vicinity of the stall concerned;

(c) The changes are for the public interest and for the proper management of the market;

(d) The decision is rational, reasonable and proportionate and is one which a reasonable decision-maker could reach; and

(e) Irrelevant considerations have not been taken into account.

(4) Upon approval being given for a stall to sell other commodities, its rent should be revised by obtaining fresh Open Market Rent from the Rating and Valuation Department.”

7.1.  After FEHD approved the seven tenants’ applications, the appellant (who trades in “non-food” at her stall) applied for judicial review in HCAL18/2013 against FEHD’s decision.  In brief, her complaint was that various grounds had been put forward at different times by the seven tenants, but FEHD had consulted the MMCC in relation to only some of the grounds, but not the other grounds.

7.2.  Consequently in a judgment dated 16 May 2014 in HCAL18/2013, L Chan J held that FEHD had failed to properly consult the MMCC in accordance with M18 and the common law when it approved the seven tenants’ applications for conversion.  The judge therefore quashed FEHD’s decision. 

2014 application for conversion of trades

8.1.  Subsequently, six of the same tenants made similar applications for conversion of trades.  

8.2.  On 31 July 2014, FEHD issued a notice for a meeting of the MMCC to be held on 14 August 2014.  As may be noted in §6 above, members of the District Council[1] are members of the MMCC, and they were duly given notice of the meeting.  The six tenants’ applications for conversion of trades were listed in the agenda and relevant documents were attached as appendices.

8.3.  The meeting originally scheduled for 14 August 2014 was subsequently re-fixed to 26 August 2014.

Events of 26 August 2014

9.  The events of 26 August 2014 were set out by the judge in his Judgment as follows:

“15. Just before the meeting was about to begin, a few participants had set up some video equipment with a view to take a video recording of the meeting.  The officers of the department, who had not been informed of such endeavour, then negotiated with them to stop the recording. 

16. Whilst the negotiation was going on, the three District Councillors left the meeting.  A Senior Health Inspector Mr Wai Kam Fat Danny then requested the councillors to come back to the meeting as the officers would settle the disruption as soon as possible.  But the councillors refused to stay behind. Some stall tenants or representatives had also left.

17. The disruption caused by the video recording was soon settled. The chairman of the meeting Mr Ma Yuen Hung, Chief Health Inspector then told the remaining participants that the meeting might not proceed (possibly due to the absence of the District Councillors).  The Form 86 alleged that Mr Ma had in fact told the remaining participants that the meeting had aborted (“流會”).  Mr Ma did not deny this on his affidavit. I will proceed on the basis that Mr Ma had indeed said so.  However, a participant Mr Kwong immediately told Mr Ma that there was no quorum requirement for a committee meeting and the meeting could continue in the absence of the councilors.  There were also many other participants demanding that the meeting should continue as they had made an effort to be present.  Mr Ma then announced a 10 minute break for his consideration of whether the meeting should be conducted further.

18. Inspector Mr Wai Kam Fat Danny also telephoned one of the councilors and requested him to return to the meeting.  But Mr Wai was told that the three councilors were having tea in a nearby restaurant.  Mr Wai then went to the restaurant and requested the councilors to return to the meeting.  But they refused.  They further told Mr Wai that they had no objection for the meeting to continue in their absence.

19. At about 3:00 pm, Mr Ma announced that the meeting would continue.  Mr Ma recalled in his affidavit that most of the participants of the meeting including the applicant of these proceedings were still in the meeting room and had participated in the subsequent discussion.

20. The six applications for change of trade were then discussed one by one.  All participants at the meeting were invited to give their views.  The applicant also gave her views.  The meeting came to an end at about 5:00 pm.”

Letter to councillors dated 27 August 2014

10.1.  Even though the councillors had told Insp Wai[2] at the restaurant that they had no objection to the meeting continuing in their absence, FEHD nevertheless wrote to the councillors the next day asking for their views by 3 September 2014, particularly on the six applications for conversion of trades[3].

10.2.  There was no response from the councillors to FEHD, whether by 3 September 2014 or thereafter.

FEHD’s decision

11.  On 31 October 2014, FEHD decided to approve five of the six applications.  This was announced at a meeting of the MMCC on 19 December 2014.

Application for judicial review

12.  On 26 February 2015, the appellant, then legally represented, filed a notice of application for leave to apply for judicial review.  Evidence was filed by both sides.  

The judge’s Judgment

13.1.  The matter came before the judge on 9 November 2015.  The appellant was represented by senior counsel.  In his Judgment of 17 November 2015, the judge held (in summary) that:

(1) the crux of the dispute was whether the interruption by the video incident, which resulted in the departure of the three councillors and some participants, had put an end to the meeting so that consultation in the resumed meeting could not be regarded as fair and adequate[4];

(2) the attendance of the councillors was not a prerequisite for the holding of the meeting as there was neither any quorum requirement nor any means to secure their attendance[5];

(3) although FEHD did not dispute that Mr Ma said at one point that the meeting was aborted, Mr Kwong Wai Hon (“KWH”)[6] had immediately intervened and pointed out that the meeting could proceed in the absence of the councillors; Mr Ma then announced a 10-minute break to consider whether the meeting should resume[7], and it did in fact resume at 3pm[8]; most of the participants, including the appellant, stayed behind and took part in the discussion, which took some 2 hours[9];

(4) the councillors did not want to participate in the resumed meeting to express any views, as shown by the following facts: they were only having tea at a nearby restaurant, they were informed by Insp Wai and therefore knew that the meeting would resume but chose not to return, and they told Insp Wai that they did not object to the meeting being conducted in their absence[10];

(5) in any event, FEHD had invited views from the councillors after the meeting but none had expressed any views[11];

(6) as for those participants who had left, if they had any strong views, they would have complained to FEHD after the decision was announced but they had not done so[12].

13.2.  For those reasons, the judge dismissed the application with costs nisi to be paid by the appellant to FEHD.

Grounds of Appeal

14.1.  The appellant appealed.  Her Notice of Appeal was drafted by legal representatives.  In brief, the grounds were:

(1) the meeting had been formally aborted by Mr Ma’s declaration;

(2) after the declaration, the councillors had treated the meeting as having been terminated, and a fresh notice of meeting was therefore necessary to consult their views as required under M18; 

(3) the judge had failed to take into account that the “video incident” had “put an unreasonable pressure on the District Councillors and was an unfair undertaking to restrict consultation of their views”.

14.2.  On 11 November 2016, the appellant (by now acting in person) filed a supplementary notice of appeal.  The additional grounds can be summarized as follows:

(4) FEHD did not obtain further views after their decision to approve five of the applications, and this was a procedural irregularity;

(5) the councillors and the persons who left did not know the meeting had resumed;

(6) FEHD failed to disclose to the judge that the person proposing to video record the meeting was the same person (KWH) who had intervened to say that the meeting need not be aborted;

(7) at the hearing, the judge did not give an opportunity to counsel for both sides to speak, and had pre-judged the case;

(8) certain materials submitted by the applicants for conversion were invalid;

(9) FEHD was in breach of “M-18 (b) and (d)”.

Summonses to adduce fresh evidence

15.  The appellant also filed two summonses[13] for leave to adduce fresh evidence at the hearing of the appeal.

Application for legal aid

16.  One week before the hearing of the appeal, the appellant applied for legal aid.

Matters before the court

17.  Thus, on 8 November 2017 there were three matters before this court which we dealt with in the following order:

(1) whether the hearing of this appeal should be stayed pursuant to s.15 of the Legal Aid Ordinance Cap. 91, or whether the stay should be lifted pursuant to s.15(4);

(2) whether leave should be given to the appellant to adduce fresh evidence as per her summons of 2 November 2017;

(3) the appeal.

Lifting of stay

18.  The principles guiding the court in the exercise of its discretion whether to lift a legal aid stay have been clearly set out in §30-37 of DHCJ Anson Wong SC’s Reasons for Decision in Choi Tak Man v Chan Yuk Lan, Didi and another[14] I will not repeat them here.   

19.1.  The appellant had in fact made two previous applications for legal aid for the appeal. 

- She had made an application on 20 November 2015 which the Legal Aid Department (“LAD”) refused on 4 December 2015.  Her appeal against such refusal was dismissed on 3 January 2017. 

- She made another application for legal aid on 17 January 2017 which LAD refused on 27 February 2017.  Her appeal against that refusal was dismissed on 21 July 2017.

19.2.  Even though the appellant had been notified half a year in advance[15] that the appeal would be heard on 8 November 2017, she did not make another application for legal aid until one week before. 

19.3.  The appellant explained that she made a new legal aid application on 1 November 2017 because she had recently found new evidence (the subject of her summons to adduce fresh evidence filed on 2 November 2017). 

19.4.  However the only piece of evidence of any relevance to the matter was a document signed on 25 October 2017 by Mr Kwong Koon-wan (“the KKW document”), one of the councillors who had first attended and then left the meeting on 26 August 2014. 

19.5.  As discussed below[16], it is clear beyond doubt that the court would not allow the KKW document to be adduced in evidence at the hearing of the appeal.  Since this would have been clear to any lawyer at LAD, it would follow that LAD (which had already refused the appellant legal aid twice before) would similarly refuse legal aid for this new application. 

19.6.  Accordingly, nothing would be served by letting the legal aid stay run its course, and in the exercise of our discretion under s.15(4), we lifted the legal aid stay.

Summons to adduce fresh evidence filed on 2 November 2017

20.  As mentioned above, the KKW document was the only piece of evidence in the summons of any relevance to the issue.  It may be translated as follows:

“To: High Court

From: Tang Shuk Chun

Re: Request to councillor KKW to confirm FEHD 26-8-2014

As FEHD was not able to effectively control order at the 26-8-2014 meeting, [I] did not know whether the meeting would continue. I also would not and refused to attend that meeting.

KKW

25/10/2017”.

21.  It was established in the case of Dr Kwong Kwok Hay v Medical Council of Hong Kong (No.2)[17] that a party seeking leave to adduce fresh evidence at the hearing of an appeal in a public law case must satisfy the court that:

either (A) the requirements set out in Ladd v Marshall [18] are satisfied,

or (B) even though Ladd v Marshall is not satisfied, the interests of justice required the court’s exercise of discretion to depart from those principles as that party has shown cogently that: 

(i) the circumstances were wholly exceptional, and

(ii) a strong public interest existed.

22.1.  I shall first consider (A).  The appellant must satisfy the three requirements of Ladd v Marshall, which are:

(1) she must show that the evidence could not have been obtained with reasonable diligence for use at the hearing before the judge; and

(2) the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and

(3) the evidence must be apparently credible, though it need not be incontrovertible.

22.2.  In the present case, the appellant has failed to satisfy even the 1^st requirement of Ladd v Marshall. 

22.3.  The fact that KKW was one of the councillors who had first attended and then left the meeting was well known to the appellant well before the hearing before the judge. 

22.4.  Even if it was not known to her earlier, his name was disclosed in the minutes of the MMCC meeting which she herself had exhibited to her affirmation.  She could see from the minutes and from FEHD’s evidence (Mr Ma’s affidavit and Insp Wai’s affirmation) what FEHD asserted was the position of the councillors including KKW. 

22.5.  She (or her legal representatives) could have verified FEHD’s assertion with KKW in the 4 months which elapsed between the filing of the FEHD evidence (Mr Ma’s affidavit and Insp Wai’s affirmation were both filed on 6 July 2015) and the hearing (which took place on 9 November 2015).  However there is no evidence that had been done, or to explain why that had not been done. 

22.6.  Accordingly the appellant has failed to show that the evidence contained in the KKW document could not have been obtained with reasonable diligence for use at the hearing before the judge.

23.  Coming then to (B), there is nothing in the appellant’s case which even begins to show that (i) the circumstances were wholly exceptional, and (ii) such a strong public interest existed, that the interests of justice required the court’s exercise of discretion to depart from the Ladd v Marshall principles.  

24.  For these reasons, the appellant’s summons filed on 2 November 2017 is dismissed with an order nisi that she pays the costs thereof to the respondent.       

The appeal

25.  Coming then to the grounds of appeal[19], ground (1) asserts that the meeting was “formally aborted” when Mr Ma made such a “declaration”.  However it is clear that Mr Ma was mistaken in law when he said so, because there was no quorum requirement, nor a requirement that the councillors must be present for the meeting to be valid.  When that was pointed out to him immediately, he instantly announced a 10-minute break[20] for him to consider whether the meeting should be continued.  That is a clear, albeit implicit, instantaneous correction of his earlier statement that the meeting was aborted, and obviously that was how it was understood by the persons present, as they stayed on for a 2-hour long discussion after the meeting resumed at 3 pm[21].

26.  Ground (2) is inconsistent with the evidence[22] accepted by the judge[23] that the councillors left during the negotiations over the proposed video recording of the meeting and before Mr Ma said the meeting was “aborted”.

27.  Ground (3) ignores the evidence that the councillors knew that FEHD did not permit the video recording to take place.  They chose to leave before the discussions between FEHD and the person proposing to video record the meeting were even concluded, and irrespective of the result of the discussions.  When Insp Wai asked them to return to the meeting, they did not inquire whether video recording would be permitted or not.  In any event, there was no evidence before the judge that the councillors left because they felt any pressure. This is simply not a valid ground for a judicial review appeal.      

28.  Ground (4) asserts that FEHD did not obtain further views after their decision to approve five of the applications, and this was a procedural irregularity.  If there is anything in the point, it should have been in the Form 86 and should have been advanced by the appellant’s legal representatives before the judge.  No explanation was proffered as to why that was not done.  That being the case, this court in the exercise of its discretion, should not allow the new point to be taken on appeal.  In any event, it has not been shown that there is any requirement in law for FEHD to canvass for further views again even after the decision was made to approve the applications.

29.  Ground (5) contains a factual allegation which should have been put before the judge but which was not.  It is well-established that an appellate court in a judicial review appeal does not re-hear the case.  There is no reason for this court to allow such a point to be taken for the first time on appeal.

30.  Ground (6) asserts that FEHD failed to disclose to the judge that the person proposing to video record the meeting was the same person (KWH) who had intervened to say that the meeting need not be aborted.  Again, there is no reason why the appellant (through her legal representatives) could not have made this point to the judge, but in any event, it is irrelevant to the issue of procedural impropriety which the judge had to determine.

31.1.  Ground (7) asserts that at the hearing, the judge did not give an opportunity to counsel for both sides to speak, and had pre-judged the case. 

31.2.  If there is anything in this point, one would have expected it to be at the forefront of the grounds of appeal drafted by the appellant’s legal representatives.  It does not appear anywhere in the original grounds of appeal. 

31.3.  There is no transcript which bears out this allegation, and in any event it is clear from the approach set out in the Judgment that the judge understood the arguments advanced by both sides and had approached the case fairly and impartially.  It might also be observed that the same judge had quashed FEHD’s decision in the first case that the appellant had successfully brought.

32.  Ground (8) complains about materials submitted by the applicants for conversion.  This point was not taken before the judge and has no place in an appeal from a judicial review decision.

33.  Ground (9) asserts that FEHD was in breach of “M-18 b and d”.  It is presumed that the appellant meant para.3(b) and (d) in M18.  The complaint regarding para.3(b) is a factual allegation which was not taken before the judge and has no place in an appeal from a judicial review decision.  The complaint regarding para.3(d) refers to the subject decision needing to be rational, reasonable and proportionate and that it was one which a reasonable decision-maker could reach.  Again it was not taken before the judge, and for the same reason, this point should not be allowed to be taken for the first time in an appellate court.   

Order

34.  For the reasons set out above, the appeal should be dismissed with an order nisi that the appellant pays the costs of the appeal to the respondent.

Hon Kwan JA:

35.  I agree with the judgment of Yuen JA.