TANG SHUK CHUN v. DIRECTOR OF FOOD AND ENVIRONMENTAL HYGIENE

HCAL 30/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 30 OF 2015

____________

____________

______________

JUDGMENT
______________

1.  This is an application for judicial review of a decision of the Director of Food and Environmental Hygiene (“the director”) made on 30 October 2014. The director in the decision approved five applications by tenants of market stalls in Cheung Chau Market (“the market”) for change of trade from “food related dry goods” (“food trade”) to “non-food related dry goods” (“non-food trade”).

2.  Leave to commence this application was given by Au J on 7 May 2015.

The facts

3.  The market is a public market as designated by Schedule 10 to the Public Health and Municipal Services Ordinance, Cap 132.  Its operation is governed by the Public Markets Regulations. 

4.  The stalls in the market are let by the director to tenants pursuant to regulation 6 of the Public Markets Regulation, Cap. 132BO which provides:

“The Director may let any stall to any one person at such rent and subject to such terms and conditions as he may determine.”

5.  The tenancy given by the director has a 2^nd schedule which prescribes the trade of the stall to either “food trade” or “non-food trade”.  Trades other than the prescribed one are prohibited.

6.  The applicant is the holder of stall no. D140.  The trade prescribed for her is non-food trade.  She sells non-food related dry goods including underwear, shoes and umbrellas. 

7.  The applicant had made a previous application for judicial review in HCAL 18/2013 against an earlier decision of the director made in late October 2012 allowing change of trade by seven stall tenants.  I gave judgment on 16 May 2014 allowing the application and quashed the director’s decision.  

8.  In this case, the applications for change of trade were made by the tenants of stalls D24, D101, D129, D135, D152 and D153.  They are six of the seven tenants involved in HCAL 18/2013.  They submitted their applications for change of trade on 16 July 2014 after I had on 16 May 2014 quashed the director’s previous decision that allowed them to change their trade.

9.  The six applications contained the same grounds; namely: the business of the stalls was not good because of competition by supermarkets; there were many stalls in Cheung Chau selling preserved seafood and few people would go to the market to buy such goods; and the six stalls had been carrying on non-food trade for years and their so doing had the support of other stall operators.

10.  The market has a Market Management Consultative Committee (“the committee”).  The membership and function of the committee are set out in M 29 of the Operational Manual of the Department of Food and Environmental Hygiene (“the department”).  The relevant parts of M 29 are as follows:

“29. Market Management Consultative Committees (27.10.2009)

(1) Market Management Consultative Committee (MMCC) should be established in public markets. MMCC holds regular meetings at QUARTERLY intervals to discuss a wide range of issues including but not limiting to letting of market stalls, use of market stalls, market tenancy and management matters, market improvement measures and market vibrancy enhancement.

(2) Membership of a MMCC is as follows:

(a) Departmental market staff

(i) Chief Health Inspector (Chairperson)

(ii) Senior Health Inspector/Health Inspector (Secretary)/Overseer

(b) Others

(i) Members of District Council;

(ii) Representatives of the stallholders of different trades, i.e. one representative of each of the trade categories who should be tenants or Registered Assistants authorized by the tenants to attend the meeting on his/her behalf;

(iii) Market management contractor/cleansing contractor and security services contractor; and

(iv) Representatives of Architectural Services Department, Electrical and Mechanical Services Department or other departments, as and when required.

(3) Other than the representatives of the stallholders, other stall tenants/Registered Assistants of the market concerned who have an interest to attend the MMCC meeting should be allowed.  Market Section should invite the standing members of the MMCC in writing at least 10 days before the meeting and remind them of the meeting schedule near the time.  For the purpose to impress other interested tenants to attend the meeting, notices should be posted in market notice boards and advise them to contact the Market Office for registration.”

11.  Regarding the procedure for approving the change of trade of a market stall, it is governed by M18 of the Operational Manual as follows:

“18. Conversion of market stall from one category to another in existing stall

(1) The authority to approve the conversion of a market stall from the sale of one commodity to another is delegated to Superintendent (Market) 1.

(2) District should seek views from the Market Management Consultative Committee on the proposed change of trade before putting up the case to Superintendent (Market) 1 for consideration. Each case should be considered on its own merits.

(3) The conversion is normally only approved when:

(a) The stall has stood vacant for some time;

(b) The commodities which the stallholder intends to sell are compatible with those being sold in the immediate vicinity of the stall concerned;

(c) The changes are for the public interest and for the proper management of the market;

(d) The decision is rational, reasonable and proportionate and is one which a reasonable decision-maker could reach; and

(e) Irrelevant considerations have not been taken into account.

(4) Upon approval being given for a stall to sell other commodities, its rent should be revised by obtaining fresh Open Market Rent from the Rating and Valuation Department.”

12.  The director, after having received the six applications on 16 July 2014, issued a notice on 30 July 2014 to hold a committee meeting on 14 august 2014.  Item 9 on the agenda was for discussing the six applications for change of trade. 

13.  The director issued a fresh notice of meeting on 13 August 2014 postponing the meeting to 26 August 2014 because all the Cheung Chau District Councillors, who were members of the committee had requested for a rescheduling of the meeting as they were unavailable on 16 August. 

14.  The meeting duly commenced on 26 August 2014 at about 2:30 p.m.  Those present at the meeting were the responsible officers of the department, three District Councillors of Cheung Chau and the tenants or representatives of 32 stalls including the applicant herein and the six tenants who had applied for change of trade.  

15.  Just before the meeting was about to begin, a few participants had set up some video equipment with a view to take a video recording of the meeting.  The officers of the department, who had not been informed of such endeavour, then negotiated with them to stop the recording. 

16.  Whilst the negotiation was going on, the three District Councillors left the meeting.  A Senior Health Inspector Mr Wai Kam Fat Danny then requested the councillors to come back to the meeting as the officers would settle the disruption as soon as possible.  But the councillors refused to stay behind. Some stall tenants or representatives had also left.

17.  The disruption caused by the video recording was soon settled. The chairman of the meeting Mr Ma Yuen Hung, Chief Health Inspector then told the remaining participants that the meeting might not proceed (possibly due to the absence of the District Councillors).  The Form 86 alleged that Mr Ma had in fact told the remaining participants that the meeting had aborted (“流會”).  Mr Ma did not deny this on his affidavit. I will proceed on the basis that Mr Ma had indeed said so.  However, a participant Mr Kwong immediately told Mr Ma that there was no quorum requirement for a committee meeting and the meeting could continue in the absence of the councilors.  There were also many other participants demanding that the meeting should continue as they had made an effort to be present.  Mr Ma then announced a 10 minute break for his consideration of whether the meeting should be conducted further.

18.  Inspector Mr Wai Kam Fat Danny also telephoned one of the councilors and requested him to return to the meeting.  But Mr Wai was told that the three councilors were having tea in a nearby restaurant.  Mr Wai then went to the restaurant and requested the councilors to return to the meeting.  But they refused.  They further told Mr Wai that they had no objection for the meeting to continue in their absence.

19.  At about 3:00 pm, Mr Ma announced that the meeting would continue.  Mr Ma recalled in his affidavit that most of the participants of the meeting including the applicant of these proceedings were still in the meeting room and had participated in the subsequent discussion.

20.  The six applications for change of trade were then discussed one by one.  All participants at the meeting were invited to give their views.  The applicant also gave her views.  The meeting came to an end at about 5:00 pm. 

21.  After the meeting, the Islands District Environmental Hygiene Office further wrote to all the Cheung Chau District Councillors on 27 August 2014 inviting them to give their views on the six applications before 3 September 2014.  There was however no reply from any councillor. 

22.  After the consultation, the officers of the department then considered the applications.  Five of them were approved on 31 October 2014.  The results of the applications were then announced at a meeting of the committee held on 19 December 2014.

Ground of review

23.  The applicant stated in the Form 86 that the director had a duty under M18 of the Operational Manual and/or the common law to properly consult the committee on each of the applications before deciding on them.  Mr Ma, the chairman of the committee meeting on 26 October 2014 had announced that the meeting had been aborted shortly after its commencement.  Even though Mr Ma had purportedly resumed the meeting later and discussed the applications with those who remained behind, the discussion was not conducted in a properly convened committee meeting.

24.  Furthermore, the three District Councillors had already left when the meeting was resumed.  Hence, there was no consultation of the views of the councillors.  These councillors had in fact opposed such applications in a previous meeting which was relevant to HCAL 18/2013.

25.  Hence, the applicant submitted that the director had not properly consulted the committee before approving the five applications for change of trade.

The applicant’s submissions

26.  Mr Pun, SC submitted that M18 of the Operational Manuel imposed on the director a duty to consult the committee on applications for change of trade.  He referred to Pearl Securities Ltd v Stock Exchange of Hong Kong Ltd [1999] 2 HKLRD 243 at 251H-J which repeats the principle in de Smith, Woolf & Jowell, Judicial Review of Administrative Action (5th ed) §8-011that the performance of a public function should be undertaken fairly unless expressed to the contrary.

27.  Mr Pun also referred to R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531 at 560D-G where Lord Mustil pointed out some requirements of fairness.  His Lordship pointed out that the principles of fairness are not to be applied by identical mechanical practice or performance in every situation.  What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects.

28.  Finally, Mr Pun referred to R (Moseley) v Haringey London Borough Council [2014] 1 WLR 3947 at §23 where Lord Wilson JSC stressed the common law duty of procedural fairness which will inform the manner in which the consultation should be conducted.

29.  Mr Pun’s first argument is that the committee was not consulted in a properly convened meeting.  He referred to M29 of the Operational Manual on the set up of the committee and its proceedings.  M29 allowed representatives of different trades and stall tenants who have an interest in the matter of  M18 and M29 together show that the director should consult the committee in a properly convened committee meeting and that is the prescribed method for the director to consult the committee.  He further submitted that Mr Ma had announced that the meeting had aborted and the three councillors and some tenants had left because of the announcement. The meeting which resumed thereafter was therefore not convened in accordance with the 10-day notice requirement in M29.  Hence, the meeting as resumed was not properly convened and the views sought from the participants therein failed to meet the requirement of consultation stipulated in M18.

30.  He repeated his submissions at the hearing that after the announcement that the meeting had aborted, the respondent should issue a fresh notice to hold a fresh meeting at least 10 days later.  He also emphasised the need to allow the three councillors to ventilate their views at the meeting as they had opposed such applications in an earlier meeting which was considered in HCAL 18/2013. The decision of the director made after the resumed meeting was without the benefit of their views.  The decision was thus tainted by procedural impropriety and should be quashed.

31.  Mr Pun has an alternative argument.  He submitted that the consultation process as a whole was unfair.  The reason being that the meeting of the committee was postponed to 26 August to accommodate the District Councillors.  But the councillors had left the meeting because of the disruption by the video incident.  There was no evidence on why the councillors did not want to return to the resumed meeting.  There were also some other participants who had left and did not return to the resumed meeting.  A meeting of the committee was important for the consideration of the applications as it would allow the participants to express and discuss their different views.  Hence, the director, when deciding on the applications, did not have the benefit of the views of the three councillors and those who did not come back to the resumed meeting. 

32.  Mr Pun further submitted that had the consultation process been a fair one, the councillors would have been able to ventilate and discuss their views in the meeting like what they had done in the previous committee meeting relevant to HCAL 18/2013.  Since the meeting was not properly conducted, the three councillors and those who did not return to the meeting were deprived of the opportunity to express their views.

The Respondent’s submissions

33.  Mr Lui, counsel for the respondent made three points. He submitted that the meeting of the committee had no quorum requirement.  M29 also had no requirement for the presence of any particular member before the meeting could be held.  The director could only invite members of the committee to attend the meeting; he could not compel their attendance.  Furthermore, the applicant had also had an adequate opportunity to ventilate her views on the applications and had fully participated in the meeting.

34.  Mr Lui further argued that the director had no duty to allow interested parties or entities to exchange views or comment on the views of one another.

35.  In response to Mr Pun’s submissions that the consultation was incomplete, Mr Lui submitted that there is no evidence to suggest that the director was biased in allowing five of the applications.

Analysis

36.  I do not think the applicant is complaining that the director was guilty of bias in approving the five applications.

37.  I also do not think the applicant’s argument is really on whether the director had the duty to allow the interested parties or entities to exchange views or comment on the views of one another and the director had breached such duty.  The director certainly has the duty to consult the committee on the applications for change of trade.  If a committee meeting is conducted with due notice to all members and interested parties in accordance with M29, those who attend the meeting would be able to exchange their views and comment on the views of one another.

38.  However, I disagree with Mr Pun that a committee meeting is the prescribe mode for the director to carry out the consultation. A committee meeting convened in accordance with M29 is certainly a proper way to carry out the consultation.  However, nwhere in M18 or M29 does it say that the director can only carry out the consultation in a committee meeting.  What is necessary is to carry out a consultation in a fair and adequate manner.   A meeting duly convened in accordance with M29 may certainly be fair and adequate.

39.  The applicant’s complaint, as confirmed by Mr Pun at the hearing, is that there was no fair consultation as there was no properly convened meeting in accordance with M29.  The applicant regarded the resumed meeting as a fresh meeting which required a fresh notice given no less than 10 days before the meeting.  Since no fresh notice was issued, the meeting was not properly convened. The director thus did not have the benefit of the views of the three councillors and those participants who had not returned to the resumed meeting.

40.  I think the crux of the dispute is whether the interruption by the video incident, which resulted in the departure of the three councillors and some participants, had put an end to the meeting so that consultation in the resumed meeting could not be regarded as fair and adequate.

41.  Mr Pun stressed that the meeting had been adjourned from 14 August to 26 August to facilitate the attendance by the councillors.  Hence, their attendance was important.  I however do not think the attendance of any District Councillor was a prerequisite for the holding of the meeting as there was neither any quorum requirement nor any means to secure their attendance.  As a matter of fact, only three councillors turned up at the meeting and the rest did not even show up.

42.  Though the director did not dispute that the Chief Health Inspector Mr Ma had announced that the meeting had aborted, it is also Mr Ma’s undisputed evidence that a Mr Kwong had immediately intervened by pointing out that the meeting could continue in the absence of the three councillors.  Most of the participants including the applicant herein had also stayed behind and took part in the discussion of the applications in resumed meeting which took about two hours.  It is obviously because of Mr Kwong’s intervention to preserve the occasion for consultation that had caused most participants including the applicant to remain.

43.  Since the applicant was present in the resumed meeting and had ventilated her views on the applications, there was nothing unfair in the consultation insofar as her being an affected party was concerned.

44.  Regarding the three councillors who did not return to the resumed meeting, they were only having tea at a nearby restaurant.  They knew that the meeting would resume.  But they chose not to return to it and indicated that they had no objection for the meeting to be conducted in their absence.  From their stance, it was obvious that they did not want to participate in the resumed meeting to express any view on the applications.  Otherwise, they would have returned to the meeting.

45.  Furthermore, the director had invited views from all Cheung Chau District Councillors including the three councillors after the meeting. But no one expressed any view.

46.  Regarding those participants who did not return, if they indeed had views to ventilate and really thought that the meeting had aborted and adjourned, they would have been on the lookout for the notice of the adjourned meeting.  The announcement of the director’s decision on the applications at the committee meeting on 19 December 2014 would also not have escaped their attention.

47.  In any event, if they indeed had views to express on the matter but were aggrieved because their opportunity to express them had been deprived by the mishandling of the meeting, they would have complained to the director or taken other steps to preserve their interest. 

48.  In fact, on Mr Ma undisputed evidence, Mr Kwong’s intervention of the abortion of the meeting was immediately upon Mr Ma’s announcement. That was why most participants had stayed behind.  It is thus very unlikely that those participants who did not stay behind were unaware of Mr Kwong’s intervention. If they should have departed before Mr Ma’s announcement, then their departure could only be because they did not want to express any view on the applications.

49.  On the facts of this case, if I should accede to the applicant’s argument that as soon as Mr Ma had made the announcement, the meeting had to end and could not be resumed there and then but a fresh meeting with at least 10 days notice would be needed, then I would be acceding to formalism and allow the procedure to shroud the purpose behind. 

50.  In this case, there was as a matter of fact a fair and adequate consultation by the director with the committee.  To allow formalism to override the fact that there was fair and adequate consultation will only entail more public expenditure and necessitate the interested parties to incur time and expenses to attend one more meeting without any justification.

Decision

51.  In the light of my analysis above, I dismiss the application.

52.  I also make a costs order nisi that the applicant do pay the respondent the costs of this application and the applicant’s own costs be taxed in accordance with the Legal Aid Regulations.