SHUN FAT CONTAINER SERVICE CO LTD. AND OTHERS v. COMMISSIONER FOR TRANSPORT

[A decision made for proper reasons and for those reasons alone will not be reviewed-merely because the material before the decision maker included irrelevant matters.]

1989 M.P. 217

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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J U D G M E N T

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1. This is an application for judicial review. The applicants use some land near Tai Po Tau village as a container park. The respondent (the Commissioner for Transport) hags decided (he says, "for reasons of road safety") that all vehicles exceeding 11 metres in length should be prohibited from entering the road which gives access to the land. The applicants are understandably aggrieved by this decision. They complain that the respondent took his decision, not just for reasons of road safety, but for other reasons as well, namely (i) that pedestrians were walking on the road; (ii) that the vehicular traffic on the road created noise and dust. They also complain that the respondent, in deciding as he did, failed to give any regard to the consequences to the applicants that might follow from his decision; and failed to give any regard to the feasibility of improving the safety of the road without restricting the applicants' use of it.

2. The legislative background is simple. The respondent has power to make regulations about road traffic: see section 11 of the Road Traffic Ordinance, Cap. 374. Under section 11, he has made the Road Traffic (Traffic Control) Regulations. By Regulation 14, he has taken power to designate any area as a prohibited zone, in which the driving of any specfied class or description of motor vehicles on any road is prohibited. The power is not in terms restricted; but I have no doubt (and it is not contended otherwise) that it may be exercised only for traffic control purposes. An exercise of the power for these and other purposes would be open to review : see Sadler v. Sheffield Corporation [1924]1 Ch. 483. In the present case, the respondent has given "road safety" as his reason for exercising the power. I have no doubt (and again if is not cotended otherwise) that "road safety" is a proper traffic control purpose. The applicants say that, having given "road safety" as the reason for his decision, the respondent cannot advance any other reason to justify it. The respondent is content with this. He says that that was indeed the reason, and the only reason, for his decision. The applicants say that it was not. The only issue is : Did the respondent arrive at his decision for reasons other than "road safety" reasons? All else (as it seems to me) is irrelevant. It is not for the court to decide, on an application for judicial review, whether the respondent could or even (in the Court's view) should, have arrived at a different decision, so long as the decision was not such as to be an affront to reason.

3. The facts are as follows :-

4. On 6th June, 1988, one Tang Tit-heung, Village Representative of Tai Po Tau Village, wrote to the Transport Department. Mr Tang wrote to express the concern and unrest of the villagers over the use of the land in question for parking container trucks and container storage. He complained that there were presently about 60 to 70 container trucks making daily use of this parking lot. The volume of traffic, said Mr Tang, had caused intolerable disruption to the tranquil village life and was potentially dangerous. He instanced the use of the road by pedestrians at the same time as the container trucks. He added that the road had not been designed to take such a load as that of the container trucks, and he suggested that the concrete slabs which formed the cover of a ditch traversing the road could easily give way, rendering the container traffic at that location very accident-prone. He also complained that the noisy and frequent container traffic had seriously disrupted the classes of Kai Chi Primary School (which is built upon land abutting the road). He asked that steps should be taken to restrict or ban the road for the passage of trucks.

5. On 27th June, 1988, a Mr Bok Kwok-ming, an engineer employed in the Transport Department of the Hong Kong Government inspected the road. His observations are in evidence. They are as follows :

1.    The road is approximately 130 metres in length and is, in general, 3 metres wide with no proper footpath. It is the sole access road for Tai Po Tau Village and the container truck carpark;

2. Pedestrians, because of the narrow footpath/verges, he had seen walking along the carriageway. When container trucks and pedestrians, in particular old people and children, were using the road at the same time, the situation was hazardous. The pedestrians were forced to the road sides in orders to give way to the container trucks. The drivers of the container trucks, because of the size of the vehicles, often did not have good vision of the pedestrians;

3. When container vehicles entered the road, the rear wheels mounted the narrow footpath. The portion of north side footpath/verge near the road entrance had been crushed by such action;

4. Single lane two-way traffic was in operation. With no passing bays provided, reversing of vehicles was necessary when two vehicles travelling in the opposite direction met. This situation was particularly dangerous when considering the limited rear vision of a container truck driver. He saw one container truck entering the narrow section of the road while another container truck was coming out of it. The first truck then reversed until its rear part was protruding onto the major road;

5. The road surface showed signs of undue wear and tear indicating that it was not designed for carrying heavy goods vehicles, and in particular the concrete covers of the ditch (to which I have already referred) he had seen to be seriously cracked. Furthermore, tension cracks were seen at a portion of the road near the entrance suggesting that the road had subsided slightly due to the heavy loading of the container trucks;

6. The railway embankment forms a "natural" barrier to the villagers. The subway (the existence of which was pointed out to me on a sketch of the area) had become a desired route for villagers and school children to reach public transport services along the Tai Po Road to Tai Wo. In so doing, they had to walk along and across the village road and therefore conflict between pedestrian and vehicular traffic was enhanced;

7. When container trucks used the road, they generated noise and dust nuisance;

8. The frequency of container trucks using the road was high; more than ten trucks were seen using the road in half an hour during his visit.

9. At the end of school, school children, unattended by adults, were seen running along and across the road to the subway. Although the situation was not particularly dangerous compared with the rest of the day, the existence of large container trucks and running school children within the same section of the narrow road was perturbing.

6. The applicants dispute the accuracy of some of this; but the fact is that Mr Rok formed the view that container trucks exceeding 11 metres in length should be prohibited from using the road. He said "I am of the view that the existing road conditions on Tai Po Tau village road are hazardous and, from a road safety point of view, unsafe." (In relation to this evidence, it is fair to observe that several of the points made by Mr Bok are concerned with other matters than road safety. Some of them are matters of background; and some of them are criticisms of the road surface rather than of the safety of users of the road.)

7. Also on 27th June, 1988, the Supervisor of the Kai Chi School wrote to the Director of the Education Department. The Supervisor wrote:-

"To the right of our school is a minor road ten feet wide. Many container lorries travel on it every day, making a very loud noise thus affecting the mood of out staff and students. Moreover, since so many container lorries travel to and fro, students crossing the minor road are also affected. We hope that the authorities concerned will look squarely at this matter and do something to improve the situation for the students' benefit."

8. On 4th July, 1988, the Executive Secretary of the Transport Complaints Unit wrote to the respondent referring to a Mr P.K. Tang who, he said, had told the Unit that the area had been used as a container depot and that, since the access road linking with the container depot was only about 10 feet wide, the container vehicles had to climb on the pavement while passing through the road. This posed a hazard and noise nuisance to the student of the Kai Chi Primary School located beside the access road. Mr Tang had proposed "to ban the container vehicles from routing via the road" to enhance pedestrian safety.

9. On 17th October, 1988, the respondent took what I may describe as his original decision, to prohibit the use of vehicles over 11 metres in length from using this road. His decision was due to be published on 11th November, 1988.

10. However, on 3rd November, 1988, two of the applicants came on the scene by their solicitors, who wrote to the Transport Department in the following terms:

"We act for Shun Fat Container' Service Company Limited and Lean Ta Transportation Company Limited."

(I should interpose that the solicitors now act for all the applicants, who are, between them almost the only persons using this road for vehicular traffic.)

"We have been informed by our clients that various road signs have been erected along the road passing through the captioned lots of property to the effect that the road shall, as from 4th November, 1988, not he accessible by vehicles exceeding a length of 11 metres."

    (I interpose again to point out that the reference to 4th November, 1988 appears to have been a slip.)

"Our clients are companies engaged in the business of provision of transportation services between Hong Kong and China. By reason of the nature of their operations their container lorries are, of necessity, heavy users of the said road which provides essential and convenient access between Hong Kong and China. Further in pursuance of their trading operations each of our clients has entered into a subtenancy agreement with their head tenant whereby the above lots were let to our clients for a period of 5?years in each case for the storage of containers. Pursuant to the agreements, our clients have made substantial and valuable contractual commitments with their respective customers in respect of transportation services. Consequently, the closure of the said road to the affected vehicles will doubtless cause considerable loss and damage to our clients, which loss and damage cannot be adequately compensated by monetary damages."

11. The solicitors added that they wanted the decision urgently reviewed.

12. On 4th November, 1988, the solicitors followed up their letter of the day before. They pointed out they were now acting for two further clients and they said this :

"We are given to understand that your Department will cause a notice to be published in the Gazette on 10th November, 1988 under Regulation 14(1)(a) of the Traffic Control Regulations of the Road Traffic Ordinance, Cap. 374 prohibiting vehicles of more than 11 metres long from using this stretch of road from 11th November, 1988 onwards."

They referred to two of their clients, the first and second applicants, and pointed out that they were subsidaries of China Resources (Holding) Company Limited, They continued :

"Their business is the provision of transport services by container trucks and trailers for goods and commodities to be sent between Hong Kong and China and these two clients together employ some 400 people.

These two clients together facilitate the movement of some 90% of all commodities moving on land between Hong Kong and China in particular Gungdong, Guangxi and the other provinces in Southern China. The commodities include light and heavy machineries, textiles, garments, foodstuff and household items. The container trucks and trailers which provide such transport services are parked on the land in question.

We are instructed that the stretch of road in question is the only link between the captioned lots and the main road and the trucks and trailers must pass through this stretch of road in order to reach the land.

Our clients together park about two hundred trucks and trailers in the car-parks in the land and nearly all of them are in excess of 11 metres. The intended prohibition will effectively ban these vehicles from using the car-parks.

All our clients are heavily committed to their transport engagements and they have to use their container trucks and trailers to fulfil such commitments. If they cannot use these vehicles, their losses will he astronomical.

All our clients are also bound by their tenancy agreements [and they enclose some of these].

If the prohibition should be in force, they will suffer further losses in rent for the lots which they have to pay while they cannot use the lots. Furthermore they cannot find any other suitable place to park their trucks and trailers.

We are further instructed that since the commencement of the use of these lots as car-park in June, 1987, there has not been any accident or injury or damage to person or property caused by the movement of the trucks and trailers in the stretch of road in question. The drivers of the trucks and trailers have been expressly instructed to take extra care when they drive through that stretch of road. The relationship between our clients and the villagers of Tai Po Tau Village is very harmonious.

Recently the villagers of Tai Po Tau Village suggested that the condition of a side road leading to the stretch of road in question was not good. Our clients immediately and at their own expense undertook some remedial works to the side road. The cost of the remedial works was about HK$67,000.00.

The village representative of Tai Po Tau Village Mr Tang Che Chiu has informed us that the villagers of his village have no objection to our clients' trucks and trailers using the stretch of road in question and Mr Tang is prepared to inform your Department about this directly if your Department so requires.

We are instructed that our clients, as interested parties, have not been consulted by your Department regarding the intended prohibition.

In view of the very substantial losses that our clients may suffer if the prohibition should take place, we on behalf of our clients request your Department to suspend the intended prohibition and to investigate the need for so doing again. We also request a meeting between your Department and our clients on this matter as soon as such a meeting can be arranged.

If the prohibition was prompted by safety considerations, our clients would like to know whether there is any other means or measures that can be implemented to improve the safety of the road in question without imposing the prohibition. Our clients are agreeable to implementing such measures at their own costs and as gifts to the Government if the costs for implementing the same should not be beyond their means."

They pointed out that the matter was very urgent.

13. On 8th November, 1988, the solicitors wrote further, stating that they had had no reply to their earlier two letters, and adding :

"We are instructed by our clients that the stretch of road in question is only about 160 metres long. It has been used by vehicles of all kinds including container trucks and trailers as an access to the captioned lots for a long long time. It is the only vehicular access from the main road to the captioned lots. Our clients and their landlords therefore have a right of access by vehicles that can pass through this road from the main road to the captioned lots. This right is an easement of necessity.

If your Department should gazette the notice and prohibit vehicles of more than 11 metres long from using this short stretch of road, it would amount to an act in derogation from grant by the Government because the Government would effectively put an end to a permitted user of the captioned lots.

In fact, it appears to our clients and their landlords that the sole effect of the intended prohibition was to put an end to the current user of these lots by our clients and their landlords.

We repeat what we have stated in our letter dated 4th November, 1988 that our clients, being the mostly affected parties, had not been consulted or informed by your Department about this intended prohibition.

We also emphasise that there was no record of my accident or injury to any person or property arising from the user of the lots or the stretch of road in question. We do not see any urgency in imposing this prohibition and we would strongly request you to suspend your intended prohibition until you have had a meeting with our clients and have obtained legal advices from the Attorney General's Chambers and the Registrar General's Department ....…."

14. On 10th November, 1988, the respondent wrote to the solicitors, thanking them for their letters of 3rd, 4th and 8th November, 1988 and stating that legal advice was being sought. In the meantime, he added, he had decided to defer publication of the Gazette Notice and he said that the prohibition would not be implemented on 11th November, 1988.

15. On 14th November, 1988, there was a meeting of the Tai Po Development District Board, Traffic and Transport Committee (1988/89). At this meeting, various views had been expressed about the present matter. A Mr Chan had said that Tai Po Tau Village Road was very narrow and that there was a school in the vicinity. He expressed the opinion that to improve the road was a matter for the Government, and not the transport companies concerned. Mr Wong shared similar views to those of Mr Chan. He said that the companies should respect the local residents' opinions and Government policy to ban container vehicles. Moreover, container vehicles, he said, might create noise pollution problems. A Mr Yau also supported the banning. He was particularly concerned about the potential traffic hazard caused to residents and school children.

16. On 16th November, 1988, the Traffic Engineering (New Territories) Division of the respondent's Department canvassed views within the Government.

17. On 18th November, 1988, the Chief Highway Engineer, New Territories, responded. He said nothing about road safety, but referred to the Government's land use policy.

18. On 22nd November, 1988, a view was expressed by the Project Manager of the New Territories/North East. He said that obviously much depended on the validity of the representations from the container carpark owners and the consequent implications. He said that, that aside, he found no reasons not to support the proposed banning in consideration of the noise generated which would affect Kai Chi Primary School, upon which the Director of Environmental Protection no doubt would be commenting. He said he was unable to offer any comments on the practicability of upgrading the existing village road unless and until details of the proposed improvements were available.

19. The Director of Environmental Protection did in fact express a view. He said :

"From environmental pollution control point of view, remedial measures such as proper paving and maintenance of the road with a necessary speed limitation and the erection of a 2m high barrier wall (masonry/brick) along the school boundary would be able to reduce the dust and noise problems significantly. Hence we have reservation on the proposal to ban container trucks from using Tai Po Tau Village Road unless, of course, the size of the existing road is so restrictive as to prevent implementation of proper environmental control measures as well as the necessary requirement to protect the safety of the pedestrians.'

20. On 24th November, 1988, the Director of Education wrote a memorandum in which he said :

"My prime concern is the safety of the pupils who use the road as well as the noise nuisance that is created by the trucks to Kai Chi Primary School. I hope you would take this into consideration.''

21. On 25th November, 1988, the Commissioner of Police wrote a memorandum. He said :

"Since the operation of the car park in question, the movement of container trunks along the only access road of the village has triggered numerous complaints. As the road is not designed for such use, these trucks have caused not only damage to the road surface but also danger to other road users in particular, the young and elderly."

22. On 2nd December, 1988, the District Officer (Tai Po) made his contribution. He said that he supported the ban on container trucks from using the road, and that, with regard to the container carpark owners' proposal to improve the road to the Government's satisfaction at the owners' expense, he thought it should not be entertained as it would set a bad precedent for other similar problematic cases in the district, or even in the territories.

23. In the result, and after taking legal advice, the respondent came to a decision, his decision, which is the decision complained of in these proceedings. It is recorded in a letter dated 29th December, 1988 from the Attorney-General to the applicants' solicitors. The Attorney-General wrote :

"I am instructed that the Commissioner for Transport has given due consideration to your representations. After considering all the relevant matters, the Commissioner decides that, for reasons of road safety, the subject road should be designated as a prohibited zone prohibiting the driving of any motor vehicle over 11 metres in length on that road. The designation is made pursuant to regualtion 14 of the Road Traffic (Traffic Control) Regulations, Cap. 374.

I am further instructed that the proposed suspension will be gazetted on 27th January, 1989 to take effect on 1st February, 1989."

24. On 31st January, 1989, this application was launched. Mr Justice Mortimer gave leave to proceed with it. On 3rd February, 1989, he ordered a stay of the decision until the determination of these proceedings. In due course the hearing was fixed for today, 21st June, 1989. It is deplorable that in these circumstances the respondent's evidence was not filed until 14th June, 1989. I am not sufficiently informed as to the reasons for this delay to cast any blame upon anybody. I content myself with observing that proceedings for judicial review are meant to be determined speedily (whether or not there is a stay of any sort) and on no account should they be postponed for months, as these were. If they are, for any good reason, postponed for any length of time, that does not excuse a delay on the part of the respondent in filing evidence. I would urge all those who are named as respondents to an application for a judicial review to put in their evidence as soon as possible. If, for whatever reason, and due to whatever misunderstanding, they leave that until a few days before the hearing (when it is a hearing the date of which has been fixed for weeks or even months), they will inevitably expose themselves to a request by the applicant for an adjournment. This is most undesirable. And applicants for a judicial review should bear in mind that, except in most unusual circumstances and only by the leave of a judge, the respondent's evidence is the end of the evidence. The idea that evidence on a judicial review can be allowed to proliferate by affirmations and affidavits winging their way from one side to the other until the date of the hearing is one of which all applicants and respondents ought now, and finally, to be disabused.

25. When the respondent's evidence was eventually filed, it was, as one would expect, helpful and clear. I would, however, urge upon all those who are responsible for filing evidence, to bear in mind the great convenience that would follow from an adherence to the Practice Direction reported in [1983]1 WLR 922. There are many helpful indications as to the proper way in which evidence ought to be prepared in those directions. In particular, I would draw attention to the requirements as to marking of affidavits which is as follows (See page 923) : "At the top right hand corner of the first page of every affidavit and also on the back sheet, there must be written in clear permanent dark blue or black marking :

1. The party on whose behalf it is filed;

2. The initials and surname of the deponent;

3. The number of the affidavit in relation to the deponent; and

4, The date when sworn."

(For example, 2nd defendant E.W. Jones, 24th July 1982.) I would also mention the way in which copies of letters should he exhibited. (and I read again from page 923):

"5. (i) Copies of individual letters should not be made separate exhibits. They should be collected together and exhibited in a bundle or bundles. Letters must be arranged in correct sequence with the earilest at the top, and properly paged."

26. At the hearing before me, it was submitted that I should consider a great deal of further evidence. This I refused to do. I was, however, told that the further evidence sought to be filed by the applicants would show that the respondent's views about road safety, in connection with this particular road, were wrong; and that, anyway, the road could be improved. I have no doubt that that is what the evidence would have disclosed. But these matters, in my judgment, are not matters for me. It is not for the Court to substitute its own (or anyone else's) view for that of the respondent on the matter whether or not the use of a read ought to be restricted on ground's of road safety. The court is concerned only to review the decision, not to reconsider it. If the decision has been arrived at illegally, improperly or irrationally, it is amenable to review. But the court never substitutes its own judgment for that of the decision maker. If it is believed that this is the function of the court upon a judicial review, then it is time that belief was dispelled. The remedy by way of judicial review is a very useful one which enables the court to control acts of government which constitute an abuse of power. But if the remedy is itself abused it will become worse than useless; it will become a snare and a delusion.

27. The considerations urged on me by the applicants are matters entirely irrelevant to the decision to which I have to come, which is whether or not the decision of the respondent can properly be called into question (and equally irrelevant, as it seems to me, to the decision to which he had to come). His function was to concern himself with the safety of the road in its existing condition at the date he made his decision. It is not, in my view, necessary for him to take into account what improvements might be made to the road in order to make it better fitted for the use which the applicants wish to make of it. This matter is of course a serious one from the applicants' point of view. But it is equally serious, as it seems to me, to the mother and the father of any child who when crossing the road from Kai Chi School is killed or seriously injured.

28. I do not have to make any judgment upon these matters. It is not for me to balance the considerations for and against making a restriction order; that would involve the Court's usurping the function of the respondent. My task is simply to review the decision made by the respondent. I have to say that I cannot fault his decision. It was not unlawful; it was not improper; and it was not irrational. There is no doubt that, as was submitted to me, he had before him a number of considerations, over and above road safety considerations. Having canvassed the views of a wide number of people, this is hardly surprising. But did he rely on such considerations? If I had felt able to conclude on the material before me that the decision at which the respondent had arrived was not taken on road safety grounds but was taken on some other ground, or on that and other grounds, I would have thought the matter susceptible to review and I would have quashed his decision. But there is no material before me upon which I can or should come to that conclusion. The applicants have not shown that any ground, other than the road safety ground on which the respondent relied, lay at the foundation of his decision. And they have not shown that he failed to have regard to any consideration which, if he had had regard to it, would have compelled him to come to the conclusion that the road was safe for use by vehicles over 11 metres in length. For the reasons I have endeavoured to state, this application must he dismissed.