LIN KAI YUEN v. DIRECTOR OF AGRICULTURE, FISHERIES AND CONSERVATION

HCAL 134 / 2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 134 OF 2009

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J U D G M E N T

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A. Introduction

1.  The Applicant is a racing pigeon lover and a member of the Hong Kong Racing Pigeons Association. He has been keeping racing pigeons at the rooftop of his residence. 

2.  This is his application for judicial review seeking an order to quash a decision (“the 2009 Decision”) contained in a letter dated 28 September 2009 from the Director of Agriculture, Fisheries and Conservation (“the Director”) refusing to grant a livestock keeping licence to him under the Public Health (Animals and Birds) (Licensing of Livestock Keeping) Regulation (Cap 139L) (“Cap 139L”) to keep 20 racing pigeons at the Applicant’s premises.  

3.  The Applicant has however been granted an exhibition licence under Public Health (Animals and Birds) (Exhibitions) Regulations (Cap 139F) (“Cap 139F”) in August 2009 to keep those pigeons.

4.  For convenience, I would in this Judgment refer to a livestock keeping licence issued under Cap 139L as a “LKL” and an exhibition licence issued under Cap 139F as an “Exhibition Licence”.

5.  Before dealing substantively the judicial review itself, I would first set out what I regard as the relevant background as follows.

B. The background

B1. The legislative framework for the keeping of poultry

6.  For the present purpose, the keeping of birds and poultry is regulated principally by two primary legislations.  The Public Health (Animals and Birds) Ordinance (Cap 139) (“Cap 139”) and the Waste Disposal Ordinance (Cap 354) (“Cap 354”).

7.  These legislations are enacted to, inter alia, generally govern the prevention of disease among animals and birds and to regulate the relevant livestock keeping activities (including the licensing of such businesses, trades and activities) and the production, storage, collection and disposal of waste in designated areas.  

8.  Section 2 of Cap 139 provides that “birds means poultry and all other birds”, and “poultry” includes pigeons.   Its section 3 further provides the Chief Executive with wide powers and he may by regulation provide for, amongst others, (a) the regulation of any business, trade or activities which involves or relates to the keeping of animals or birds, and (b) empowering the Director to attach to any licence issued under the Ordinance such conditions as he may see fit to impose. 

9.  Various sub-legislations in the form of regulations were then enacted under section 3 of Cap 139.  They provide for the regulation of the issuing of licences by the Director for the keeping of birds for various purposes. For the present application, we will only be concerned with Cap 139F, which governs the issue of Exhibition Licences, and Cap 139L in relation to the LKL licensing scheme.

10.  Under s.15AA of Cap 354, it is provided that no person shall keep livestock in or on any premises in a “livestock waste restriction area” unless he is an exempted person, or authorized by the Director of Environmental Protection or he holds a licence to do so issued by the Director under Cap 139. 

11.  Similarly, Regulation 3 of Cap 139L provides that no person shall keep a livestock in or on any premises within a “livestock waste control area” unless he is exempted or licensed.  The Director is given the power to issue such LKL under Regulation 4.

12.  Under Regulation 2 of Cap 139L, “exempt person” means any person or any class of person specified in the Fourth Schedule (“the 4^th Schedule”) to Cap 354.

13.  Thus, in summary, a person cannot keep a livestock within any livestock waste restriction area or livestock waste control area unless he holds a licence issued by the Director under Cap 139, or a written permission from the Director of Environmental Protection or is exempted under the 4^th Schedule.

14.  Prior to February 2006, under item 7 of the 4^th Schedule, a person keeping not more than 20 poultry (thus including pigeons) in or on his premises was such an exempt person.

15.  However, item 7 of the 4^th Schedule was deleted by LN 19 of 2006 on 13 February 2006. 

16.  Thus, after February 2006, it is an offence for a person to keep poultry, even if it is less than the number of 20, in a livestock waste restriction area or livestock waste control area, unless he has obtained the necessary permission from the Director of Environmental Protection or holds a relevant licence issued by the Director under Cap 139.

B2. The Applicant’s application for a licence

17.  As mentioned above, the Applicant has been keeping not more than 20 pigeons on the rooftop of his residential premises. It is common ground that his premises lies within a livestock waste restriction area for the purposes of both Cap 139 and Cap 354.

18.  Given that he had kept less than 20 racing pigeons, before February 2006, he was an exempt person under item 7 of the 4^th Schedule and was not required to have any licence or permission to keep those pigeons.

19.  However, as the exemption was removed after February 2006, it became necessary for the Applicant to either apply to the Director for a licence under Cap 139 or obtain a written permission from the Director of Environmental Protection for him to continue to keep these racing pigeons without committing an offence.

20.  The Applicant through his solicitors applied to the Director for a LKL under Cap 139L on 22 March 2007.

21.  On 4 June 2007, the Director wrote to the Applicant to convey his decision (“the 2007 Decision”) to refuse to grant a LKL.  In this refusal letter (“the 2007 Refusal Letter”), the three reasons given by the Director for refusing to grant a LKL are in summary as follows:

(1) due to the increasing global and serious threat of avian influenza posed by poultry farms, it has been the established policy of the Government not to further issue any new LKL, and the Applicant’s case did not justify a departure from such policy of not granting any LKL after 2006;

(2) the application did not satisfy the standard licensing conditions; and

(3) the application failed to meet Regulation 4(2) of Cap 139L.

22.  After refusing to grant the LKL, the Director in the 2007 Refusal Letter further advised the Applicant to consider applying for another type of licence, such as the Exhibition Licence under Cap 139F, to legitimize the keeping of those racing pigeons.

23.  On 5 March 2009, the Applicant through his solicitors filed an application for an Exhibition Licence.

24.  He was subsequently granted an Exhibition Licence on 3 August 2009.  The Exhibition Licence came with a number of conditions concerning biosecurity safety measures that the Applicant should comply with in keeping the pigeons.

25.  However, the Applicant did not accept that he should be granted an Exhibition Licence instead of a LKL.  Through his solicitors, he wrote twice to ask the Director to reconsider the 2007 Decision and to grant him a LKL:

(1) The first letter was dated 28 August 2008 containing arguments on why the Applicant thought that the 2007 Decision was wrong.

(2) The second letter was dated 24 September 2009, which was a reminder to urge the Director to reconsider the 2007 Decision.

26.  On 28 September 2009, the Director sent a reply letter to the Applicant informing him about the 2009 Decision.  In that letter (“the 2009 Refusal Letter”), the Director only stated the non-compliance of Regulation 4(2) of Cap 139L as the reason for refusing to issue a LKL to the Applicant.

27.  The Applicant eventually collected the Exhibition Licence on 19 November 2009.  It is the Applicant’s case that he did not agree that he should be granted an Exhibition Licence instead of a LKL, but he collected it only to avoid the risk of being alleged to have committed an offence.

28.  On 10 December 2009, the Applicant applied for leave to apply for judicial review against the 2009 Decision.  Leave was granted by this Court on 27 January 2010.

C. Thisjudicial review

C1. The groundsof challengein summary

29.  The Applicant says, for the purpose of licensing and regulating him to keep less than 20 racing pigeons, he should be issued a LKL instead of an Exhibition Licence.  In summary, the grounds advanced in the Amended Form 86 in support of the judicial review against the 2009 Decision (to refuse to grant him a LKL) are as follows:

(1) The Applicant’s premises is within a livestock waste restriction area.

(2) However, in coming to the 2009 Decision, the Director has wrongly interpreted Regulation 4(2) of Cap 139L as applicable to the present circumstances.  Properly construed, Regulation 4(2) does not and is not intended to apply to the circumstances of the Applicant.

(3) When Regulation 4(2) is disapplied, the Director still maintains a general discretion under Regulation 4(1) of Cap 139L to issue a LKL to a person keeping livestock in a waste restriction area. 

(4) It was however a wrongful exercise of the Director’s discretion under Regulation 4(1) of Cap 139L in refusing to grant the Applicant a LKL.  In coming to that decision, the Director had taken into account the consideration to fully recover the administrative cost of issuing a licence as a factor (as a LKL attracts a lower licence fee than an Exhibition Licence).  This is an irrelevant consideration which the Director had wrongfully taken into account in the exercise of his direction, and was therefore misusing his statutory discretionary power:  R v Birmingham Licensing Planning Committee ex p Kennedy[1]; Congreve v Home Office[2]; Lee Ma Loi v Commissioner of Inland Revenue[3].

30.  At the hearing, Mr Kwok for the Applicant further submits that the 2009 Decision was also unreasonable or irrational in the public law sense, in that a LKL is obviously more appropriate than an Exhibition Licence to regulate the Applicant’s keeping of racing pigeons as (a) the same set of biosecurity conditions could be attached to a LKL as in the present Exhibition Licence to minimize the risks of avian influenza, (b) the Applicant, as a racing pigeon keeper, has no intention whatsoever to exhibit the pigeons for business purposes (which is the primary purpose of obtaining an Exhibition Licence), (c) an Exhibition Licence inherently poses more threat of the spread of avian influenza since it allows the public to view the pigeons, and (d) the business purpose of an Exhibition Licence is inconsistent with the residential nature of the Applicant’s premises.

31.  I will deal with these arguments in detail below[4].

C2. The Regulation 4(2) arguments

32.  Regulation 4 of Cap 139L deals with the Director’s power to grant a LKL under Cap 139L.  For the present purpose, it is helpful to set it out in full as follows:

“4. Power of Director to grant licence, etc.

(1) Upon application in a form specified by the Director and payment of the relevant specified fee, the Director may grant a licence to the applicant to keep livestock in or on premises in respect of which the licence is granted within a livestock waste restriction area or a livestock waste control area.

(2) Where any premises in respect of which a licence is applied for are within a livestock waste restriction area, the Director shall not grant the licence unless he is satisfied that-

(a) the premises had been continuously used for livestock keeping for at least 12 months immediately before the commencement of section 2 of the Waste Disposal (Amendment) Ordinance 1994 (28 of 1994); and

(b) no ex gratia payment for cessation of livestock keeping in or on the premises has been made by the Government after that commencement.

(2A) Without prejudice to subsection (2), where any premises in respect of which a licence in respect of the keeping of specified birds is applied for are within a livestock waste control area, the Director shall not grant the licence unless he is satisfied that—

(a) the premises had been continuously used for the keeping of specified birds for at least 12 months immediately before the commencement of the Public Health (Animals and Birds) (Licensing of Livestock Keeping) (Amendment) Regulation 2006;

(b) no ex gratia payment for cessation of the keeping of specified birds in or on the premises has been made by the Government after that commencement; and

(c) the number of specified birds to be kept in or on the premises under the licence will be more than 20.

(3) A licence may be renewed by the Director upon application in a form specified by the Director and payment of the relevant specified fee.

(4) A licence shall be valid for a period of 3 years beginning on the date it is granted or renewed, as the case may be, unless the Director otherwise determines a shorter period.

(5) A licence shall be subject to such terms and conditions relating to-

(a) the keeping of livestock; and

(b) public health or environmental protection,

as the Director may think fit to impose.”

33.  Under Regulation 4(2), it is provided that the Director shall not grant a LKL to any applicant for premises in a livestock waste restriction area unless the two statutory requirements are satisfied, namely:

(1) The subject matter premises had been continuously used for livestock keeping for at least 12 months before the commencement of section 2 of Cap 354; and

(2) The applicant has not received any ex gratia payment from the Government in giving up the said livestock keeping on that premises^[5].

34.  The Applicant’s premises is located within a livestock waste restriction area.  There is also no dispute that the Applicant does not satisfy any of these two statutory conditions.

35.  As such, the Director says in applying Regulation 4(2), he simply has no discretion to grant a LKL to the Applicant. 

36.  Mr Kwok for the Applicant disagrees.   He says Regulation 4(2) is not intended to apply to a situation as that of the Applicant and thus should have no effect for the present purpose.  As such, the Director still retains a discretion under Regulation 4(1) to consider granting a LKL to the Applicant.  Mr Kwok’s arguments in support of this contention run as follows:

(1) Regulation 4(2) refers to a historical fact concerning the voluntary surrender scheme to encourage keepers of livestock who had held a valid LKL under Cap 139L to give up their licences. 

(2) The purpose and mischief that Regulation 4(2) was aiming at was to forbid those who had previously been keeping livestock at their premises and benefited from the surrender scheme to re-enter the same activities again.

(3) However, before 2006, keeping of not more than 20 pigeons was exempted from any form of licensing.  Thus, keepers of less than 20 poultry (including pigeons) could not have held a valid LKL and thus qualified for the voluntary surrender scheme. Further, the Director in his evidence filed confirms that no further LKL licences were issued after 2005.

(4) Therefore, it was not possible for a person who had kept not more than 20 pigeons at his premises to have a LKL and then qualify for the surrender scheme for ex gratia payment for cessation of livestock keeping.  Put it in another way, these persons could never have been able to satisfy the conditions set out under Regulation 4(2).

(5) As such, persons who have been keeping not more than 20 poultry were not within the contemplation of the legislature when Regulation 4(2) was enacted.  Such activities therefore did not fall within the scope, purpose and mischief that Regulation 4(2) aimed at. 

(6) Properly construed in this context, Regulation 4(2) is not sufficiently clear and unequivocal to deprive those who had kept not more than 20 pigeons at their premises the benefit of a LKL under Cap 139L.

(7) Regulation 4(2) is therefore not intended to be applicable to a situation (such as the Applicant) where the person has been keeping not more than 20 poultry before 2006.

37.  I do not accept Mr Kwok’s submissions.  In my view, the Director has rightly applied Regulation 4(2) in coming to the 2009 Decision (and for that purpose, also the 2007 Decision).   The following are my reasons.

38.  When one construes Regulation 4, it must be looked at objectively as a whole with all the relevant subsections.  In my view, when the wordings of Regulations 4(1), (2) and (2A) are looked at together, it is clear to me that subsections (2) and (2A) prescribe and are intended to so prescribe all the requirements under which the Director can start to exercise his discretion under subsection (1).  

39.  In my judgment, the structure of these three subsections, the use of the mandatory words “the Director shall not” grant a licence under subsections (2) and (2A) of Regulation 4, and the lack of any qualification words or phrases[6] inserted under these subsections to reserve any remaining or additional discretion under subsection (1) to situations other than those envisaged under subsections (2) and (2A), show to me that it is the clear objective intention of the legislature that subsections (2) and (2A) are to set out the minimum requirements an applicant has to satisfy before the Director could have a discretion to decide whether or not (and thus the word “may”) to grant a LKL to the applicant (with or without any additional conditions).  There is no scope for the Director to grant a LKL in situations other than those set out under these two subsections, although he has a discretion still not to grant a licence even if these minimum requirements are satisfied.  In other words, subsections (2) and (2A) respectively provide for the necessary though not necessarily sufficient requirements under which the Director may exercise his power to grant a LKL. 

40.  Therefore, once the Director is satisfied that the requirements provided under Regulations 4(2) or 4(2A) are not met, there is no remaining discretion under Regulation 4(1) for the Director to exercise to consider whether or not to grant a LKL.

41.  I have come to this conclusion relying on what I regard as an objective reading of the clear words of Regulation 4.  I do not need to resort to any “parliamentary materials” to assist the construction under the Pepper v Hart principle.

42.  However, in advancing the contentions raised on the proper construction of Regulation 4 of Cap 139L, parties have at the hearing adduced and referred to evidence of various legislative briefs concerning the amendments proposed to be made to Cap 139F under the Public Health (Animals and Birds) (Exhibitions) (Amendment) Regulation 2006.  These are produced to show the debates on the Administration’s policy relating to the regulation and licensing of poultry keeping, in particular on “backyard keeping” of not more than 20 poultry.

43.  If it were necessary and permissible for me to refer to these materials, I accept the Director’s submissions that they show that it was the intended policy of the Administration to (a) regulate and licentiate backyard poultry keeping, (b) stop issuing further new LKL for this purpose to reduce the risk of avian influenza, and (c) issue Exhibition Licences to racing pigeons keepers instead of LKL.  These had been fully debated in the Legislative Council, where apparently submissions had been made by racing pigeon lovers to the members of the Legislative Council, and their concerns and views had then been conveyed through these members in the debates.    At the end, the Legislative Council accepted and passed the amendments made to Cap 139F. 

44.  Further, the legislative history also shows that, at the same time when item 7 of the 4^th Schedule was deleted (i.e., to remove the exemption for keeping not more than 20 poultry)[7], consequential amendments[8] were made to Regulation 4 by adding subsection (2A). Nothing was amended to Regulation 4 to expressly provide for granting a LKL to persons keeping not more than 20 poultry.

45.  When all of these are looked at together (if the Court needs and is permitted to look at them) to construe Regulation 4, this only fortifies my view that it does not provide the Director any further discretion to consider granting a LKL to applicants keeping not more than 20 poultry other than in the situations set out under subsections (2) and (2A). 

46.  For these reasons, I reject the Applicant’s submissions that the 2009 Decision is wrongful in law as the Director had wrongly construed and applied Regulation 4(2) of Cap 139L.

C3. The 2009 Decision was unreasonable and irrational

47.  Given my above conclusion on the proper construction of Regulation 4(2) of Cap 139L, there is no question of the 2009 Decision being irrational or unreasonable as the Director has no discretion to grant the Applicant a LKL.

48.  However, as the grounds of unreasonableness and irrationality have been fully argued before me, for completeness, I would deal with them briefly as follows.

49.  The Applicant contends that the decision to grant him an Exhibition Licence instead of a LKL is irrational and unreasonable, and also amounts to a misuse of the discretion by the Director (if there is one), because:

(1)   The licence fee for an Exhibition Licence[9] is appreciably more than that for a LKL Licence[10].

(2)   The undisputed evidence on the legislative materials shows that the licence fee for Exhibition Licence was fixed pursuant to the principle of recovering the administrative cost[11].

(3)   At the same time, an Exhibition Licence is clearly less appropriate than a LKL to cater for the situation of the Applicant since:

(a)  “Exhibition of animals and birds” in Cap 139F is defined to mean “an exhibition of animals or birds to which the public are admitted on payment of a fee or other money consideration”.

(b) However, the Applicant, as an enthusiast in pigeon racing as a sport, has no intention to carry out any “exhibition” of the racing pigeons by admitting the public to view them at a fee.

(c)  Further, the Applicant’s premises is a residential one, the user of which is inconsistent with the commercial nature of an Exhibition Licence. 

(d) The “exhibition” if carried out, which the Applicant would be permitted to do under the licence, would increase the risk of the spread of avian influenza amongst the public, since the pigeons would be “exposed” to the public during the viewing.

(4)   In the premises, the Director’s decision to still issue to the Applicant an Exhibition Licence instead of a LKL was clearly made for the main if not only purpose of recovering the full cost of the licence.  Other than the decision iself being irrational and unreasonable, this was also a misuse by the Director of the discretion vested in him.

50.  In light of Mr Kwok’s above submissions, the questions I need to address under this ground are whether the decision to issue to the Applicant an Exhibition Licence instead of a LKL is one which (a) was premised primarily on the consideration of recovering the administrative cost, and/or (b) is so unreasonable or irrational that no reasonable person in the position of the Director would have come to the same decision.

51.  I do not think either of these is established:

(1) As I referred to in the above, the uncontroversial evidence before me clearly shows that, to avoid or minimise the risk of avian influenza, it is the policy of the Administration on public health concern not to issue any further LKL after 2005, and that racing pigeons keepers are expected to be issued an Exhibition Licence for the keeping of the pigeons.  The policy had been explained and debated in the Legislative Council when the amendments to Cap 139F were discussed, where the views of the racing pigeons keepers and lovers had been expressed and considered. After these views had been taken into account, these amendments were duly passed with certain revision down and changes on the fees structure of the exhibition licence.

(2) There is no or no valid challenge raised in the present proceedings against this policy.

(3) If insofar as he had any remaining discretion under Regulation 4(1) of Cap 139L, the Director in coming to the 2009 Decision (and also the 2007 Decision) was only applying this considered policy.  There are no special circumstances suggested or shown that he should depart from this policy.

(4) Further, I accept the submissions of Mr Mak (for the Director) that a LKL also cannot be said to be clearly more appropriate to cater for the keeping of racing pigeons.  The unchallenged reason for not issuing a LKL in substitution for an Exhibition Licence for regulating racing pigeons was explained and recorded at paragraph 20 of the Legislative Council Paper No. CB(2)95/06-07 as follows:

“The Administration has explained that under Cap 139L, no person shall keep livestock (i.e., pigs, chickens, ducks, geese, pigeons and quail) unless he is exempted or granted an LKL. The LKL cannot be a substitute for exhibition licence for animals and birds in regulating pigeons. Under the terms of LKL, poultry may not leave the farms except for delivery to wholesale poultry market and poultry that has already left may not be returned to the forms to prevent avian influenza in case they become infected through contact with wild birds. Therefore, LKL is not appropriate for regulating racing pigeons which have to take frequent flying exercises. In fact, the Government has decided not to issue any new LKL when it launched the voluntary surrender scheme for local poultry farms in August 2005.” (emphasis added)

(5) In other words, neither the Exhibition Licence nor the LKL can be said to be clearly more appropriate to cater for the situation of the Applicant.

(6) In light of these, I am not convinced that (a) the decision to issue an Exhibition Licence to the Applicant was premised primarily on monetary concern to recover the full administrative cost of the licensing, and (b) either the 2007 or the 2009 Decision is unreasonable or irrational in the public law sense.

52.  I therefore also reject this second ground of judicial review.

D.  Conclusion

53.  I would dismiss the application for the application judicial review.

54.  There are no special circumstances to justify the departure from the normal rule that costs should follow the event.  I will further make an order nisi that the Director’s costs should be paid by the Applicant to be taxed of not agreed. The Applicant’s own costs would be taxed in accordance with legal aid regulations.  Unless any of the parties applies to vary it, the costs order nisi shall become absolute 14 days from today.