NG ENTERPRISES LTD. v. THE URBAN COUNCIL

IN THE COURT OF APPEAL

1995, No. 147
(Civil)

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D E C I S I O N

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Litton, V.-P. (giving the decision of the Court):

1. We have before us an application by the appellant Ng Enterprises Limited for leave to appeal to the Privy Council. This court gave judgment on 5 December last year and by a majority an appeal against Keith J's judgment was dismissed. There is only one matter left in issue namely the legal validity of a by-law made by the Urban Council on 13 September 1994 under the provisions of the Public Health and Municipal Services Ordinance, the effect of which was to eliminate a category of hawkers by rendering itinerant hawking illegal in the urban areas.

2. The application to us is made under the two limbs of Rule 2 of the 1909 Order in Council governing appeals to Her Majesty in Council. In our view this application plainly does not come within Rule 2(a). The question is whether it comes within Rule 2(b) namely whether there is a question of great general or public importance the determination of which ought to go to Her Majesty in Council. The question formulated is simply this: the extent of the delegated powers of the Urban Council to make regulations under s83A of the Public Health and Municipal Services Ordinance to render in effect itinerant hawking illegal in the urban areas. It seems to us that this is a question of great general and public importance and therefore the application comes within the provisions of Rule 2(b). For this reason we give leave to appeal.