KAM WING TRAVEL GROUP LTD v. SECRETARY FOR JUSTICE for COMMISSIONER FOR TRANSPORT

HCAL113/2008
& HCAL 51/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 113 OF 2008

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J U D G M E N T

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Introduction

1.    The applicant provided public bus service under Passenger Service Licence 11187A granted by the Commissioner of Transport.

2.    The applicant committed breaches of the conditions of the PSL as follows :

Date	Buses involved	Breaches
Instance A :
22/8 & 1/9/06	MH3027	Collecting fare from passengers
20/9/06	KN312
Instance B :
25/8/06	LA7500	Driver collecting fares from passengers
18/9/06	LS9354
Instance C :
1/2/07	LP5232	Separate fares collected from passengers
22/3/07	MP8960

3.    The same public officer appointed by the Commissioner conducted Inquiry Nos.45/2006 and 46/2006 in respect of Instances B and A on 15 December 2006.  He then submitted two separate reports to the Commissioner.

4.    On 8 June 2007, the Commissioner, after considering the reports and having been satisfied that the applicant had committed the breaches, decided to cancel the PSL for MH3027 and KN312 (“the 1^st Decision”) and for LA7500 and LS9354 (“the 2^nd Decision”).

5.    The applicant then applied for review before the Transport Tribunal against the two Decisions.  The reviews against the 1^st Decision and 2^nd Decision took place on 25 August and 23 September 2008 respectively.  The Tribunal upheld the 1^st Decision and 2^nd Decision on 6 January and 24 February 2009.

6.    On 6 March 2009, the applicant wrote to the Commissioner informing him that it intended to apply for judicial review against the 2^nd Decision and requested for a stay of the execution of the sanction.  By letter dated 17 March 2009, the Commissioner replied that unless the applicant took out the application and the Commissioner was furnished with the grounds of the application for further consideration by 31 March 2009, the Commissioner shall enforce the sanction (“the 3^rd Decision”).

7.    On 31 July 2007, another public officer conducted Inquiry No.16 of 2007 in respect of Instance C and then submitted a report to the Commissioner.  On 5 February 2008, the Commissioner decided to cancel the PSL for LP5232 and MP8960 (“4^th Decision”).  The Tribunal heard the applicant’s review on 30 June 2009.  On 27 August 2009, the Tribunal varied the sanction by suspending the PSL in respect of the only remaining vehicle for 36 months.

8.    The applicant applied for judicial review against the 1^st Decision in HCAL113/08 and the 2^nd and 3^rd Decisions in HCAL51/2009.  It has not brought any similar application in respect of the 4^th Decision.

The 1^st and 2^nd Decisions

9.    Under the Road Traffic Ordinance (Cap.374), sanction in respect of a breach of a PSL is a matter for the Commissioner.  As the sentencing authority, the Commissioner must impose a sanction which is commensurate with the gravity of the breach and the circumstances of the case before him.  He must take into account all the relevant factors, both mitigating and aggravating.

10.   The court in the exercise of its supervisory jurisdiction in judicial review will not interfere with the sanction imposed by the Commissioner unless it can be demonstrated that he had erred in law, or he had failed to take into account a relevant factor or that the sanction is one so manifestly excessive such that no reasonable sentencing authority would have imposed it.

11.   The principal argument deployed against the 1^st and 2^nd Decisions is this.  The nature of the breach in Instances A, B and C is similar.  Yet the Tribunal (differently constituted) had by the 4^th Decision imposed a much lenient sanction.  What the Tribunal did indicated that the sanctions imposed by the Commissioner by way of the 1^st and 2^nd Decisions were manifestly excessive.  I disagree.

12. Any disparity in sentence arising here came from the Tribunal and not the Commissioner.  The mere fact that the Tribunal (differently constituted) came to a different view on sanction for Instance C does not even begin to show that the Commissioner had erred in imposing the sanctions as he did by way of the 1^st and 2^nd Decisions.  Indeed, on the evidence before me, I am not convinced that the Commissioner had erred at all.

13. The applicant further argued that the Commissioner should have treated Instances A and B as a continuing breach.  I also disagree.  I think the Commissioner was quite entitled to treat the breaches as separate instances.

14. The applicant finally argued that the Commissioner had failed to take into account the totality principle when imposing the sanctions.  I also disagree.  The applicant has not cited any authority to support its proposition that the totality principle, essentially a concept in criminal sentencing, is applicable in the present context.  In any event, as I have said, the Commissioner had already taken into account all the relevant circumstances when imposing the sanctions.  I can see no reason to interfere.

The 3^rd Decision

15. At the hearing on 22 July 2009, I refused to give leave to apply for judicial review against the 3^rd Decision.  I took the view that when the correspondence between the applicant and the Commissioner is properly read, the Commissioner did not purport to vary the statutory period for mounting the application for judicial review as alleged.  The Commissioner was entitled to make sure that the applicant did take out the application and the grounds in support were reasonably arguable when considering if he should exercise his discretion to stay the execution of the sanction imposed.  The challenge against the 3^rd Decision is therefore plainly unarguable.

Conclusion

16. For the above reasons, I will dismiss the application for leave in both actions.