CHAN TSAT SAM v. THE URBAN COUNCIL

1986 No. MP 2304

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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JUDGMENT

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1. This is a motion by Chan Tsat Sam (the applicant) for judicial review pursuant to leave granted by Deputy Judge Cruden on the 28th October 1986. By that order the applicant seeks the following relief:-

2. Mr Yau, who appeared for the applicant, abandoned the first ground, but instead sought leave to argue an amended ground which reads:-

"The Removal Order contained in the Notice dated 11th July 1985 issued by the Urban Council is ultra-vires (i.e. outside the jurisdiction of the decision making body) because it offends against the rule of natural justice in that the Removal Order is issued without giving the applicant the opportunity to be heard."

3. Mr Fleming, counsel for the respondent, did not oppose this application.

4. The facts reveal that the applicant has been the licensee of Cooked Food Stall No. 9 Tung Choi Street, Mongkok since 1954. On the 9th July 1985 a Removal Order was made by a District Hygiene Superintendent under By-law 34 of the Hawker By-laws 1972 which is now the Hawker (Urban Council) By-laws. The applicant was notified of the order by a letter from the Urban Council dated the 11th July 1985 which reads:-

"                    Permanent resite of fixed pitches

 

By-law      34 is made under the provisions of section 83A of what is now the Public Health and Municipal Services Ordinance which reads where relevant as follows:-

By-law 34 of  the Hawker (Urban Council) By-laws reads as follows:-

By-law 33, which is relevant provides:-

5. Apart from the applicant's stall in Tung Choi Street the Urban Council also served Removal Orders upon four other licensees who operated cooked food stalls in Tung Choi   Street. As the applicant was required to vacate his pitch permanently the Urban Council was obliged to allocate him with another pitch having regard to the provisions of By-laws 34(3) and 33(1) to which I have referred. In response to the letter to the applicant to attend the ballot on the 26th July 1985, the applicant attended and drew No. 7 stall in the Canton Road Cooked Food Centre. However, the applicant was not satisfied with the allocation of the new site for on the 31st July 1985 he wrote a letter to the Urban Council, which has been incorrectly described as an appeal against the Removal Order, in which he made a request for an extention of time of two years to allow him to continue to operate his stall in Tung Choi Street. The application was refused and the applicant was asked to vacate his pitch within one month.

6. On the 21st October 1985 the applicant submitted a petition to UMELCO requesting that the time limit to vacate his pitch be extended. An extension was granted pending the consideration of the petition, but the petition was eventually dismissed on the 11th December 1985 when the applicant was given 15 days in which to vacate. The applicant did not vacate within the time allowed, but wrote to the Urban Council on the 3rd February 1986 requesting a further stay pending a decision by the Review Sub-committee of the Markets and Street Traders Select Committee. The Markets and Street Traders Select Committee is a committee that is appointed under Standing Order 6 of the Standing Orders of the Urban Council which in turn has authority to appoint a sub-committee which makes recommendations to the Select Committee for ratification. The Sub-committee had, in fact, considered applications on the 25th January 1986 from the four licensees of the other cooked food stalls in Tung Choi Street that the allocation of the new sites to them be withdrawn. Although their applications were refused, they were granted a period of grace for three months. That decision was ratified by the Markets and Street Traders Select Committee on the 19th February 1986. The four licensees have since vacated their pitches. The applicant's case was dealt with in the same way as the other four licensees, but his request was refused.

7. On the 26th march 1986 the applicant's licence to operate the stall was renewed until the 31st March 1987, and has since been renewed for a further 12 months from that date. By a letter dated the 8th May 1986 the applicant requested the Urban council to relocate his site to the Fa Yuen Street Urban Council complex, but this application was refused. Subsequently a petition was presented by the applicant to the Governor in Council. At this juncture, the applicant's case was referred to the Review Sub-committee in order to give the applicant an opportunity to put forward representations. The meeting of the Sub-committee was fixed for the 7th June 1985 when the applicant attended with his son and his solicitor, Mr Lam. However, as Mr Lam had not had sufficient time in which to prepare his case, the meeting was adjourned until the 10th June 1986.

8. It has been the applicant's case and, indeed despite observations that I made during the course of argument it was maintained that the sub- committee had been formed to consider the validity of the Removal Order. However, it is perfectly plain from the evidence of the minutes of the two meetings that the function of the sub-committee was not to consider the validity of the order, but to consider the applicant's request to be allocated another site in place of the one that he drew in the ballot. By way of illustration the heading of the minutes of the two meetings reads:-

Paragraphs 1, 4 and 5 from the minutes of the meeting held on the 10th June 1986 are also significant. They read as follows:-

9. Having considered the representations with regard to the resiting of the cooked food stall, the sub-committee recommended to the Market and Street Traders Select Committee that the applicant be required to vacate his stall before the 25th July 1986. The decision was ratified by the Markets and Street Traders Select Committee on the 25th June 1986.

10. As I have said, it is abundantly clear that the Review Sub-Committee was not concerned to make a recommendation upon the validity of the Removal Order, but solely with the applicant's request to resite him at an alternative site to the one which he had drawn in the ballot.

11. The main argument advanced by Mr Yau, however, has been directed to the failure by the Urban Council to afford a hearing to the applicant. There is no statutory procedure for an appeal by an aggrieved person against a decision to make a Removal Order under By-law 34. Accordingly, Mr Yau contended that before a Removal Order is made, a person affected should be given an opportunity to be heard in order to put forward objections. By their failure to allow the applicant a hearing the Urban Council had acted in breach of the rules of natural justice. Mr Yau therefore submitted that the Removal Order was invalid.

12. It is well known that the Urban Council has a policy to remove hawkers of Cooked Food Stalls from the streets of Hong Kong and to resite them in what are called In House Food Centres. Such policy is being carried out for environmental, traffic and health reasons. The policy would obviously be frustrated and impossible to perform if, as has been suggested by Mr Yau, an aggrieved person were to be permitted a hearing to put forward objections. No one has the right to carry on business on the street even if he has been there for almost 33 years, in defiance of a policy that is being conducted in the public interest. In my judgment the rules of natural justice do not require a hearing to be given in the circumstances of this case before a Removal Order is made. A hearing would be a futile exercise. The principles of natural justice do not apply to the policy despite any detriment that may be suffered by some people who are affected. Nevertheless, I agree with Mr Fleming that in the implementation of the policy the Urban Council must abide by the principles of natural justice. However, upon the facts there has been no failure to comply with those requirements. In fact, the Urban Council could not have acted with more fairness over a period of almost two years since the Removal Order was made. The applicant has clearly suffered no injustice.

13. A further argument that was raised by Mr Yau was that the Urban Council, by continuing to accept the licence fees and by renewing the applicant's licence was estopped from exercising its powers or  had waived its rights under the Removal Order. Mr Yau, therefore, submitted that on these grounds, the Removal order was no longer effective. However, by virtue of section 125(1)(b) of the Public Health and Municipal Services Ordinance, a licence cannot be refused unless the licensee has contravened any of the provisions of the Ordinance. There was no evidence of any contravention so that the Urban Council was obliged to renew the licence. However, the issue of estoppel or of waiver does not extend to public law see Newbury District Council v. Secretary of State for Environment ⁽¹⁾ where Lord Scarman at p. 617 said:-

14. The applicant's grievance has nothing to do with the making of the Removal Order, but with regard to his dissatisfaction concerning the site which he drew in the ballot. At the time of the ballot there were only two sites available, one in Canton Road and the other in Mongkok. Neither site was satisfactory. The applicant wishes to be allocated a site in the Fa Yuen Street complex which I am told will not be completed until 1989. Until it is completed, he wants to remain in Tung Choi Street. The attitude of the applicant despite every consideration that has been given to him has been most unreasonable.

15. The arguments that were advanced on behalf of the applicant were wholly misconceived. As a result the motion is dismissed.

(1)    (1981) A.C. 578