YEUNG KAM MAN v. THE URBAN COUNCIL

M.P. No. 580 of 1987

IN THE HIGH COURT OF JUSTICE

HONG KONG

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JUDGMENT

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1. This is a motion by Yeung Kam Man (the applicant) for judicial review pursuant to leave granted by Mayo, J. on the 30th March 1987.

2. The applicant carries on the business of a fruit and vegetable hawker by virtue of a licence granted by the Urban Council (the Council) at the New Aberdeen Market. Previously he had operated a stall at the Old Aberdeen Market from 1976 until 1983. In 1983 the applicant obtained his present stall which resulted in the grant to him by the Council of a three year tenancy from 1st March 1983 to 28th February 1986 under an agreement dated 4th March 1983. A second tenancy agreement was granted for 10 months from the 1st March 1986 by an agreement dated the 8th April 1986 whilst a third tenancy agreement was granted on the 29th December 1986 for three years commencing on the 1st January 1987. Each tenancy agreement is in the same terms. Clauses 16 and 17 contain provisions for the termination of the tenancy. Clause 16 reads :

Clause 17 provides :

"17.       This Agreement may be determined by either party giving to the other party not less than one month's notice in writing expiring on the first day of January/April/July/October, and in that event the deposit specified in clause 6 shall be refunded to the Tenant, subject to any debt or liability by the Tenant to the Council under this Agreement or otherwise."

3. It is the policy of the Council to consider the termination of a market stall tenancy when four convictions for offences under the Public Health and Municipal Services Ordinance, Cap. 132 and its subsidiary legislation have been recorded against the same stall within a period of 12 months. It is common ground that four convictions were recorded against operators of the stall during the period from the 13th March 1985 to the 5th February 1986 for obstruction contrary to By-law 9 of the Public Market (Urban Council) By-laws. As a result of these offences the Council wrote warning letters to the applicant on the 18th October 1985, 2nd December 1985, 18th February 1986 and 18th March 1986 informing him of the policy and that consideration would be given to terminate the tenancy agreement of the stall under Clause 16.

4. On the 11th October 1986, the Council gave written notice to the applicant, that his tenancy would be terminated on the 31st December 1986 pursuant to By-law 6 of the Public Market By-laws 1960 and clause 17 of the tenancy agreement. The letter also informed the applicant that he had a right to apply for a review of the decision within 14 days to the Markets and Street Traders Review Sub-Committee (Sub-Committee). In response to this letter the applicant requested a rescission of the order and a renewal of his tenancy. As a result he was interviewed by a member of the Urban Services Department on the 23rd October 1986 when he asked for leniency on the grounds that his family would suffer financial hardship. He also promised to cut down the extent of the obstruction. However, the department considered that the explanation given by the applicant did not justify a reversal of the decision having regard to the repeated warnings given by the Council with regard to obstruction and that the objections by the applicant relating to financial hardship or loss of business did not justify special treatment being given and that a rescission would create an undesirable precedent. The matter was then considered by the Sub-Committee at a meeting held on the 10th January 1987 which was attended by the applicant, his younger sister and solicitor. After consideration of the application, the Sub-Committee agreed to recommend to the Markets and Street Traders Select Committee (Select Committee) that the termination of the stall should take effect on the 1st April 1987. This decision was ratified by the Select Committee on the 18th February 1987.

5. By the amended statement filed pursuant to 0.53, r.3 of the Rules of the Supreme Court, the applicant seeks the following relief :

6. Mr Ng, Counsel for the applicant based his submission on five grounds: first there was no cause for forfeiture of the tenancy; second, the Council is barred from obtaining possession by reason of waiver and estoppel; third, the applicant is entitled to a period of 6 months notice under the. provisions of Part V of the Landlord and Tenant (Consolidation) Ordinance; fourth, there were breaches of the principles of natural justice; fifth, the ratification by the Select Committee of the decision of the Sub-Committee amounted to a rubber stamping exercise for the Select Committee failed to exercise its r discretion independently of the Sub-Committee.

7. In respect of the first ground Mr Ng argued that no cause had been shown by the Council to justify forfeiture under the third tenancy agreement that commenced on the 1st January 1987 for all the breaches complained of under Clause 16 arose before the commencement of that tenancy. However, the facts as set out in the minutes of the meeting of the Sub-Committee reveal that the problem of obstruction had continued after the commencement of the third tenancy agreement, which was not disputed by the applicant. There is therefore no merit in this ground.

8. Mr Ng went on to argue that by virtue of the Council accepting a further deposit and renewing the tenancy agreement, the Council had waived its rights to terminate the tenancy and were therefore estopped from denying the rights of the applicant. However, it is trite law that for waiver or estoppel to arise, there must be established a private contractual right where the issue, as is here, is a matter of public law. Matters matters of waiver and estoppel are not appropriate for determination on an application for judicial review. This argument also fails.

9. Mr Ng contended that in any event the applicant was entitled to a period of six months notice to quit under Part V of the Landlord and Tenant (Consolidation) Ordinance for the premises constituted business premises. The Council derives its authority to grant the tenancy under Section 79A of the Public Health and Municipal Services Ordinance which confers upon the Council the power of management and control of all public markets in Hong Kong. In order to establish that a lease has been granted the applicant must show that he has a right to exclusive possession. Under By-law 4 of the Public Market (Urban Council) By-laws, the Council may from time to time, prescribe in any market, the hours during which the market shall be open or closed to the public. The prescribed opening hours for the Aberdeen Market are between 6 a.m. and 8 p.m. and outside those hours, no person, whether a stall tenant or not, is allowed to remain or enter the market except with the permission of the Urban Services Department. The entrance and exit from the market are closed by the Urban Services Department at 8 p.m. each day. The applicant has never received permission to remain at his stall beyond the authorised hours. Having regard to this By-law the applicant clearly has not proved that he is entitled to exclusive possession. It is also evident that the applicant does not have any interest in the land upon which the stall is erected. Another factor that militates against a lease is the absence of a covenant for quiet enjoyment in the tenancy agreement. The circumstances of the tenancy granted to the applicant do not envisage any intention to grant a lease that would enable the applicant to invoke the provisions of the Landlord and Tenant (Consolidation) Ordinance. The submission that the ordinance applies is wholly misconceived.

10. On the issue of the breach of the principles of natural justice, Mr Ng complains that after the applicant, his sister and solicitor left the meeting of the sub-committee, a decision to terminate the tenancy was not made right away, but a further discussion took place in the presence of the prosecuting officers of the Urban Services Department and by virtue of the applicant's absence, there had been a breach of the principles of natural justice. The passages complained of are set out in paragraphs 9, 10 and 11 of the minutes exhibit LTL2 which read as follows :-

11. In support of his argument, Mr Ng cited R. v. Barnsley Metropolitan Borough Council ex parte Hook⁽¹⁾ where a market trader was banned by the Amenities and Services Committee of the local authority from trading on the grounds of his behaviour and where his right to a stall was revoked. The trader sought a review of the decision before a sub-committee and at the meeting of the sub-committee, the market manager was present throughout and was in a position to express his view of the evidence to the committee. The applicant and his representatives were not provided with particulars of any charge or of the evidence. After they had put forward their representations, the sub-committee discussed the case whilst the market manager was still present and decided to adhere to the original decision. It was held by the Court of Appeal that the Local Authority was in breach of the rules of natural justice as the committee had heard the market manager's evidence in the absence of the applicant or his representative and that the market manager was therefore in a position of a prosecutor and had been present at the deliberations of the committee when it came to its decision. In the instant case, the applicant was clearly aware of the charges that had been made against him with regard to obstruction. The enquiries that were made after the applicant and his solicitor left were in no way influenced by any members of the Department as has been alleged. The facts can in no way be said to be comparable with those that were before the Court in the case of Barnsley. The minutes reveals that the matter was investigated in detail with the applicant and his representative present to put forward his view. The allegation that there was any breach of naturla justice by the sub-committee was totally without foundation.

12. Further the objection to the department's recommendation that rescission would create an undesirable precedent was in my judgment, a perfectly valid comment.

13. The final ground that was argued was to the effect that the Select Committee merely rubber-stamped the decision of the sub-committee. The minutes of that Committee appear at LTL3 and set out in detail the deliberations of the Committee. There was no evidence to show that the minutes of the sub-committee were not before the Select Committee and there was no evidence to show that the applicant's case was not properly considered. I am quite satisfied that there is no merit in this ground.

14. Accordingly the motion will be dismissed with costs.

(1)    [1976] 3 All E.R. 452