MAN YEE TRANSPORT BUS CO LTD v. TRANSPORT TRIBUNAL AND ANOTHER

HCAL 103/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 103 OF 2008

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J U D G M E N T

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1.  The applicant seeks leave to launch judicial review proceedings to challenge the decision of the Transport Tribunal made on 31 July 2008.  By its decision, the Transport Tribunal, sitting on review of the earlier decision of the Commissioner for Transport to cancel the passenger service licences of the applicant in respect of two buses bearing registration marks GV6278 and LF4793, decided to confirm the Commissioner’s decision in respect of GV6278 and to vary that in respect of LF4793 to suspension for a period of 48 months.

2.  As GV6278 was no longer owned by the applicant, the cancellation decision was imposed on another bus bearing registration mark HF2875 also owned by the applicant.

3.  The applicant and its associated company, Nam Kee, are bus operators of different bus routes.  Nam Kee is the bus operator of route no NR719 from Hennessy Road/Johnston Road in Wanchai to Blossom Garden in Tuen Mun north.

4.  On 6 and 21 September 2006, the applicant deployed GV6278 and LF4793, which were owned by the applicant and licensed to run on other routes, to provide services from Johnston Road in Wanchai to Tuen Mun.

5.  The applicant thus acted in breach of the relevant conditions in the passenger service licences in respect of the two buses, the licensing conditions for a non-franchised bus and the relevant provisions in the Road Traffic Ordinance (Cap 374).  The Commissioner decided to cancel the passenger service licences in respect of the two buses by way of punishment.  As described, on review, the Transport Tribunal decided to vary the Commissioner’s decision to the extent that the passenger service licence in respect of one bus was suspended for 48 months instead of cancellation.

6.  In this application for leave to apply for judicial review, the applicant does not dispute that it has acted in breach of the relevant conditions and provisions in the Road Traffic Ordinance.  What it argues is that the punishment imposed is too severe.  In particular, it contends that the Transport Tribunal has come to wrong findings of fact.  What happened on those two days was that buses belonging to Nam Kee that were running on route no NR932 were out of service due to repair.  The applicant therefore caused GV6278 and LF4793 to run on route no NR719 as substitute buses.  The Transport Tribunal was quite wrong, the applicant contends, to find that the two buses were running what is commonly called “Mun Mo” operations or similar operations on the dates in question.

7.  The applicant complains that the Transport Tribunal wrongly refused to allow the applicant to adduce evidence to show that some buses of Nam Kee running on the route in question were under repair on the dates in question, so as to substantiate its claim that GV6278 and LF4793 were running as substitute buses only.

8.  I see no merit in this complaint.  The repair records that the applicant relies on relate to 6 and 12 September 2006, whereas the two dates in question were 6 and 21 September 2006.

9.  Furthermore, these so-called records are merely computer print-outs which are not signed by anybody.  It is not absolutely clear whether the so-called repairs were undertaken by Nam Kee itself or by some outside repairer.  Apparently the primary documents are not in evidence.  The so-called records are hardly impressive as evidence.

10.  In any event, the relevant section 30 inquiry had been held on 15 December 2006 and the applicant had known of the allegation made against it for running Mun Mo operations for a long time.  Yet the records were not available at the hearing and the applicant’s representative, when asked by the Tribunal what the alleged “unexpected situation” was that led to the deployment of the two buses to run on route no NR719, simply told the Tribunal that he was not sure, it might be due to the breaking down of one of the buses, and he needed to return to the office of the applicant to check the records.  Needless to say, such answers were hardly convincing.

11.  It was wholly within the discretion of the Tribunal not to grant an adjournment for such purpose.

12.  The findings by the Tribunal that the applicant was using the two buses to carry out Mun Mo operations are findings of fact.  This Court, it must be noted, does not sit on appeal from the Tribunal’s decision on facts.  It only exercises a supervisory role.  There was quite sufficient evidence before the Tribunal to justify its findings or inferences of fact.  The submissions made before this Court, designed to attack those findings or inferences of fact, are simply misplaced.  On the totality of the evidence before the Tribunal, the findings and inferences of fact made by the Tribunal were ones that it was quite entitled to make.

13.  In respect of GV 6278, its last stop in Tuen Mun where the last passengers got off (namely, Pierhead Garden in Tuen Mun south which is directly opposite Tuen Mun Ferry Pier) was quite far away from Blossom Garden and the route was substantially different from the approved route of route no NR 719.  The bus service was provided to the public for a separate fare without distinction and was quite obviously not provided exclusively or mostly, if at all, for the residents of Blossom Garden.

14.  As for LF 4793, there was a substantial deviation of its route from the approved route and there were many more stops in the Tuen Mun district.  The service was not provided exclusively or mostly for the residents of Blossom Garden, although the last passengers alighted at a destination which was “about Blossom Garden” – a matter which the Tribunal did not lose sight of.

15.  On top of all that, as described, there was at the hearing no evidence to substantiate the bare claim that the buses were deployed to run route no NR719 as substitute buses due to some “unexpected situation”.

16.  It is then said that the Tribunal, in considering punishment, has wrongly taken into account previous similar breaches by the applicant when it was under a different ownership and management.

17.  There is no merit in the submission.  I know of no law that previous records should be disregarded in the case of a corporate offender simply because of a subsequent change of ownership or management.  If this were so, all a corporate offender needs to do to obtain a clear record is to have its ownership or management changed after a conviction.  That cannot be right.

18.  Moreover, the fact is that the present owner of the applicant bought or must be taken to have bought the applicant with full knowledge of its previous records.  It simply does not lie in its mouth to make the complaint.

19.  As for the complaint made by counsel at the hearing about the Tribunal mentioning that the applicant had received warning letters from the Commissioner for similar breaches after the change of ownership and management, the complaint was not made in the Form 86A or verified by the supporting affirmation.  More importantly, the applicant does not challenge the breaches for which it received the warning letters.  There was nothing wrong for the Tribunal to mention or take into account these previous breaches in considering punishment.

20.  The application for leave is dismissed with no order as to costs.