YU WING CHANG v. DIRECTOR OF FOOD AND ENVIRONMENTAL HYGIENE DEPARTMENT

   HCAL 10/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 10 OF 2009

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J U D G M E N T

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1. I have borne in mind all submissions urged upon the Court.  The Court stresses that it recognises and acknowledges the general public interest involved in the Director’s strong stance in relation to compliance with regulation 30AA of the Food Business Regulations, Cap 132X, which requires permittees of market stalls to slaughter all live poultry remaining unsold at the stalls each day before 8 pm and to ensure that there is no live poultry at the stalls between 8 pm each day and 5 am the next day.

2. The threat of avian flu to Hong Kong cannot be overstated.  However, it is very fair on the part of Miss Jenny Fung, Senior Government Counsel appearing for the Director at the hearing today, to accept that in order to make good the point that the applicant’s breach, and there has been one only, of the regulation, would lead to a threat to general public health that I have just described and that the Director’s decision to terminate the tenancy of the stall for that single breach is justified by the serious condition that Hong Kong is facing towards any possible threat of the flu, more substantive evidence would have to be filed with the Court.

3. She, very rightly, in my view, accepts that the Court simply cannot take judicial notice of any matters further than what I have just said in relation to the possible threat of the flu.  All this has been said in the context of Ms Fung’s argument that the merits of the applicant’s appeal against the Director’s termination of the tenancy of his stall by reason of the breach in question to the Municipal Services Appeal Board are highly doubtful.

4. Ms Fung again accepts that she cannot go so far as to say that the appeal is hopeless, but essentially she says that given the poor chances of success of the appeal, refusal of the Court to continue the ex parte injunction would be unlikely to prejudice the eventual position of the applicant. 

5. Ms Fung accepts, again fairly, that she cannot say that in case her assessment of the merits of the applicant’s appeal is incorrect and the appeal should turn out to be successful, damages alone would be a sufficient and adequate remedy to the applicant, she recognising that in the present case a person’s right to his livelihood is concerned; and even without referring to any constitutional right to that effect, she accepts that the common law gives protection to one’s right to livelihood by appropriate means.

6. The question before me is therefore whether, pending the filing of evidence by the Director to contest the injunction, the injunction should be continued.  It is again accepted that if the injunction were not continued, and if the Director should take steps, which would likely be the case, to recover possession of the stall in the meantime, that would render, for all practical purposes, nugatory the appeal that the applicant had lodged, as well as the present judicial review proceedings, save to the extent that the applicant might still wish to pursue against the Director in case he was right in these judicial review proceedings or the appeal that he had been wrongly deprived of his stall.

7. But as I said, it is accepted by both sides that damages would not be an adequate remedy in such circumstances.  As I say, the need to protect public health cannot be doubted.  In order to fully protect the position of the Director as well as the public in general, it is plain that the applicant must not repeat what he has done in terms of compliance with regulation 30AA.  Any repetition of his non-compliance with regulation 30AA would almost conclusively confirm the fear of the Director in relation to his suitability to be a permittee for selling live poultry in a public market.  I certainly and fully sympathise with the Director’s view and fear, particularly if there should be a repeated contravention.

8. On behalf of the applicant, Mr Hectar Pun of counsel has offered a further undertaking, in addition to the undertaking as to damages that has already been given by the applicant, to fully comply with regulation 30AA, failing which the injunction that he is asking the Court to continue shall be discharged automatically.

9. I believe that goes some way towards alleviating the fear of the Director and the concerns about public health.

10. One further undertaking that should be given by the applicant is the payment of all rentals and other moneys that would otherwise be or in due course become due and payable under the tenancy agreement or by reason of the applicant’s occupation of the stall if the Director had not terminated the tenancy into court pending the resolution of the relevant issues.  Mr Pun is also prepared to give such an undertaking on behalf of his lay client.

11. So having borne everything in mind and having borne in mind the very interim or temporary nature of the continuation of the injunction; that is to say that at this stage, the injunction shall only be continued until after the determination of the applicant’s summons, I believe the right balance would be struck by the Court continuing the ex parte injunction to that limited extent subject to the further undertakings to be given by the applicant.

12. One more point worth registering at this stage is the one that I have mentioned to Ms Fung during her very able submission, ie that the Director certainly does not play a passive role in the appeal that has been lodged by the applicant to the Municipal Services Appeal Board.  Although I am not fully conversant with the rules of appeal to the Board without sight of the relevant statutory provisions, I believe that in a case of the present nature where an element of public health is involved, it certainly is open to the Director to ask for an early date to be fixed for the hearing of the relevant appeal, and any attempt to delay the prosecution of the appeal would no doubt, I believe, be frowned upon by those manning the Appeal Board, and indeed the stronger the Director feels about the merit of the appeal or the lack of it, the firmer his stance should be in relation to the expeditious prosecution of the appeal, and I am sure the Board would listen sympathetically to the concern of the Director.

13. And of course, by the nature of things, once the result of the appeal is known, most if not all of the issues raised in these judicial review proceedings will automatically be resolved, and hopefully the matter can be dealt with by agreement one way or the other. 

14. So this is what I am directing and ordering:

(i)  leave to the respondent to file and serve evidence in opposition to the continuation of the ex parte injunction sought in the applicant’s summons dated 11 February 2009 within 14 days from the date hereof;

(ii)  leave to the applicant to file and serve evidence in reply within 14 days thereafter;

(iii) no further evidence be filed without leave of the court;

(iv) hearing of the applicant’s summons dated 11 February 2009 be adjourned to a date to be fixed, estimated length: one day;

(v) without prejudice to the undertaking as to damages already given and upon the applicant’s further undertaking by counsel to:

  (a) fully comply with the requirements in regulation 30AA(1) of the Food Business Regulations, Cap 132X, in relation to his operations at Stall P1 at Hung Hom Market, failing which the ex parte injunction granted and continued by this Court shall be discharged automatically without further order;

  (b)    pay all rentals and other moneys otherwise due and payable under the tenancy agreement or by reason of his occupation of Stall P1 if the tenancy agreement had not been terminated by the respondent into court pending the resolution of the relevant issues or further order of the court; and

  (c) prosecute the Municipal Services Appeals Board appeal expeditiously,  the ex parte injunction be continued until after the determination of the said summons or until further order;

(vi) costs be reserved.