KWOON CHUNG MOTORS CO LTD v. KWOON CHUNG MOTORS CO LTD

HCAL117/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW

LIST NO. 117 OF 2005

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J U D G M E N T

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1.  What I have before me this morning is an application for leave to apply for Judicial Review to challenge the decisions of the Transport Tribunal of 18 March 2005 which confirmed the decisions of the Commissioner for Transport on 25 May 2004.

2.  The decisions, in essence, suspended four buses of the Applicant from passenger service for two months.  The reason for the decision of the Transport Tribunal was given on 13 May 2005.  I was told this morning that, as far as the suspension is concerned, it  has been implemented and the suspension ended in June this year.

3.  The Form 86A was not filed until 7 September this year and, bearing in mind the dates of the decisions which are being challenged, the Applicant asked for leave to apply out of time.

4.  The application for leave to apply out of time has to be considered, in my judgment, against the background that the suspension has been implemented and therefore at the beginning of this morning’s hearing, I inquired with Miss Ng, counsel for the Applicant, as to whether this exercise is wholly academic.

5.  Miss Ng submitted that it is not academic in the sense that although the suspension had been implemented, the decision itself is still a blemish on the record of the Applicant and it might affect the prospect of the Applicant’s renewal of their passenger service licence in the future.  Hence, she says, notwithstanding the fact that the suspension had been fully implemented, the court should still entertain the application.

6.  Three grounds have been advanced by Miss Ng to challenge the decision of the Transport Tribunal on its merits.

7.  Having heard submissions from counsel and reminding myself as to the correct test to be applied at this stage, namely, I have to ask myself whether the material before me disclosed matters which, on further consideration, might demonstrate an arguable case for the grant of the remedy sought, I decided that I can grant leave in respect of the first ground.  But I am not satisfied that I should grant extension of time and I am not satisfied that leave should be granted for Judicial Review in respect of the second and the third grounds.

8.  I will just give some brief reasons why I do not think it is right to grant extension of time as well as leave for Judicial Review with regard to the second and the third grounds.

9.  In essence, the second ground seems to me to be a challenge to the Commissioner’s refusal to grant an extension of permission to the Applicant to operate their free shuttle bus service in September 2002.  But that was the subject matter of a previous Judicial Review proceedings, namely, HCAL25 of 2003.

10. Form 86A in the 2003 Judicial Review proceedings was filed by the Applicant on 4 March 2003 and the decisions challenged were the decisions of the Commissioner dated 14 September 2002 refusing to approve the Applicant’s application to operate the free bus service, and the application was subsequently redrafted and placed before Chung J for consideration.  That redrafted application was dated 5 June 2003.

11. Having considered the contents of that application, there was in fact, in my judgment, substantial overlap with the grounds which the Applicant now seeks to canvass again in the present Judicial Review application.

12. At today’s hearing, Miss Ng argued that, as far as this second ground is concerned, the Applicant wished to contend that (1) the Commissioner failed to have regard to the fact that the Applicant was seeking to renew an existing service and; (2) under the regime in section 28 of the Road Traffic Ordinance, the Commissioner should not have considered that, as far as this sort of permission is concerned, that should be confined to promotion activities which last for a limited duration.

13. That seems to me to be the sort of argument which the Applicant has sought to put forward in the previous Judicial Review proceedings as set out, for example, in paragraph 12 of the redrafted Form 86A.  In any event, there is no reason why the matters which the Applicant now seeks to canvass cannot be advanced in the previous Judicial Review proceedings.

14. What happened was that that Judicial Review proceedings was subsequently withdrawn by the Applicant.  The consequence, in my judgment, is that the Applicant therefore has to accept the validity of the decision of the Commissioner in terms of refusal to grant permission to extend the service after September 2002.  To allow the Applicant to revisit these grounds in the context of the present proceedings is, in my view, tantamount to an abuse of process.

15. Further, having considered the arguments of Miss Ng about the merits of this second ground, I must say I do not see any substantial merit in it.  As far as the point about the Commissioner overlooking the fact that it is an existing service, I think it is quite clear from the letter from the Commissioner to the Applicant on 12 August 2002 that the Commissioner was well aware and had indeed taken into account the fact that this was an existing service at the time when he made the decision that there should not be any further extension. 

16. In particular, what is said by the Commissioner at the second page of the letter shows clearly that the Commissioner had already considered that and given some indulgence to the Applicant way back in August.  What the Commissioner said was this:

“Nevertheless, I would appreciate your need of time to prepare for cessation of the free bus service route in question and the effect possibly caused to the passengers if the services stop operation immediately in mid-August 2002. On this basis, this Department has no objection to extending the current approval of one month until 12 September 2002. The extended approval will fully cover the summer holiday and should be sufficient for business or promotion at the Wonderworld in this period. Upon cessation of the free bus services, passengers may make use of existing public transport services for shopping at the Wonderworld. However, the approval for extension on this occasion should not be construed as a precedent.”

17. As regards the point about this sort of licence being a temporary measure, I am afraid I cannot agree with Miss Ng’s submission that this is unwarranted in terms of the construction of section 28.  This disposes of the second ground.

18. As far as the third ground is concerned, it touches upon the proportionality of the penalty meted out to the Applicant by the Tribunal.  That was a two-month suspension.  As I have mentioned earlier on, that suspension has been implemented and the Applicant has not seen fit to take steps to challenge that before its implementation.  In fact, the present application was only taken out in September after the full implementation of that suspension.

19. I have also examined the substantial merit of that ground and I think Miss Ng recognised that if the Applicant were able to succeed on the first ground, the Applicant would get the relief the Applicant seeks.  But if the Applicant fails on the first ground, there is really nothing in the application to support a free-standing challenge with regard to the third ground, at least as far as basing on what I was told this morning.  From the materials that I have seen in the papers, I do not consider that there is any substance to support a free-standing challenge on the basis of the third ground.

20. For those reasons, I also refuse to grant leave for an extension of time with regard to the third ground.

21. The outcome is that I will grant leave on the basis of the first ground.  As far as the application is concerned, it means that the Applicant cannot canvass argument based on paragraph 26(2) and paragraphs 29 to 30 in the Form 86A, and I will grant extension of time for that purpose.

22. I direct the Applicant to file and serve the Notice of Motion setting out the permissible grounds - that means deleting paragraphs 26(2), 29 and 30 - within five days.

23. Costs of today be in the cause.