CHRISTIAN KILA MATALA-MUTAKWE v. TRANSPORT DEPARTMENT

HCAL 56/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 56 OF 2007

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J U D G M E N T

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1.  Mr Matala-Mutakwe, the holder of a driver’s licence issued by the Democratic Republic of Congo, now lives in Hong Kong.  He has made application to the Transport Department (Licensing Unit) for a driver's licence to permit him to drive in Hong Kong.

2.  Under R 11(3) of the Road Traffic (Driving Licenses) Regulations, Cap 374, Sub Leg B, the Commissioner of Transport is authorised to issue a full driving licence to an applicant if the Commissioner is satisfied that some time within three years before the date on which the applicant makes the application he held a driver’s certificate or licence issued by a competent authority in any country or place listed in the Fourth Schedule to the Regulations authorising him to drive motor vehicles of the class which he would be authorised to drive by the licence for which he has applied.

3.  If the country which has issued a driver’s licence to an applicant is not on the list in the Fourth Schedule it is necessary for the applicant to first obtain a probationary licence, to undergo a driving course in Hong Kong, and to pass a driving test.

4.  The Democratic Republic of Congo is not on the list in the Force Schedule. Mr Matala-Mutakwe is accordingly required by law to first obtain a probationary licence, then undergo a driving course in Hong Kong and then pass a driving test.

5.  Mr Matala-Mutakwe complains that it is degrading for a person such as himself, the holder of a driver’s licence for a period of 18 years, with overseas driving experience, to have to undergo the procedure required by Hong Kong law.  He says that the law discriminates against persons from the Democratic Republic of Congo.  He says that he is being victimised by negligence on the part of the Transport Department.  He seeks to judicially review the circumstances in which the government has not placed the Democratic Republic of Congo in the Fourth Schedule to the Regulations.

6.  I am satisfied that there is no basis upon which such an argument may properly be made.  A government in any country is perfectly entitled to determine the basis upon which it will issue a driver’s licenses to persons, without the requirement of having first undergoing a driving course, a driving test, and serving a period as a probationary driver, with all of the limitations that go upon a probationary driver.  To include some countries and exclude others is not an act of discrimination, but a deliberate decision made undoubtedly upon a proper investigation of the relevant countries.  That Mr Matala-Mutakwe may find that situation degrading is regrettable, but not a basis upon which judicial review might proceed.

7.  It is equally unarguable that there is any negligence on the part of the Transport Department.  Neither Mr Matala-Mutakwe nor citizens generally of the Democratic Republic of Congo victimised by the exclusion of that country from the list, they are merely in the same circumstances as any other country excluded.

8.  Mr Matala-Mutakwe’s most appropriate course of action would be to approach the Consulate of the Democratic Republic of Congo in Hong Kong in an effort to persuade them to lobby the Government of the Special Administrative Region of Hong Kong to have that country included in the Fourth Scheduled to the Regulations.

9.  There is however no basis for Judicial Review.  There is no evidence to suggest that the Transport Department has proceeded on a wrong basis, or applied wrong criteria, or acted irrationally in making a decision not to include the Democratic Republic of Congo in the Fourth Schedule to the Regulations.

10.  The Application for leave to Apply for Judicial Review must be refused.