YU SHU TONG v. BUK CHEONG LOONG AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. On 7th November 1991 I gave judgment in this action concerning premises at the corner of Nathan Road and Nanking Street, Kowloon. I will not repeat what I said in that judgment. A reference to that judgment will disclose that I took the view that a further point fell to be more fully considered before the action was finally disposed of, and the case has been restored for further consideration of that point, which concerns the validity of the licences known as "fixed pitch hawker licences" granted by the Urban Council to the defendants in the action. The plaintiff contends that the Urban Council had no power to grant the defendants these licences. The defendants claim that it had such power. But, unfortunately, the Urban Council is not before me, and I ought not to make a final decision about this point one way or the other in the absence of the Urban Council.

2. Order 15, rule 6 of the Rules of the Supreme Court provides, among other things, that at any stage of the proceedings in any cause or matter, the Court may on such terms as it thinks just, of its own motion order to be joined as a party any person whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, or any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which, in the opinion of the court, it will be just and convenient to determine as between him and that party as well as between the parties to the cause or matter. This is in my judgment a proper case for the exercise of these powers.

3. I will not say anything more about the merits of the matter save to say that, after a full and extremely helpful analysis of the statutory scheme (including the subsidiary legislation) presented to me by counsel for the plaintiff, it does appear that the Urban Council may not have had power to grant the licences which they have granted to the defendants. The reason is that the place where the defendants have been licensed to erect their stalls is not a place the subject of any declaration by the Commissioner for Transport under the provisions of s.83B(4) of the Public Health and Municipal Services Ordinance, Cap.132.

4. At this stage I shall merely order that the Urban Council be joined as a defendant to this action. I shall again stand the case out of the list with liberty to the plaintiff to restore it when ready. It is not for me to decide what procedural steps should next be taken. But it may help if I indicate that, in my view, the statement of claim in the action might be amended to claim a declaration against the Urban Council that the licences granted to the defendants by the Urban Council were not validly granted.