KEUNG SIU FAI v. ATTORNEY GENERAL

Headnote

Judicial review - sale of live fish without a licence on an engineless boat at Aberdeen harbour contrary to By-law 32(1)(d) of the Food Business By-Laws made under Section 56 of the Public Health and Urban Services Ordinance Cap. 132 - Held pursuant to Section 2(1) of the Interpretation and General Clauses Ordinance Cap. 1 in the absence of a contrary intention the jurisdiction of the Urban Council extends to the waters of Hong Kong in the urban areas so that a licence is required - in considering the applicant's application for a licence the Urban Council is entitled to seek the comments of the Director of Marine with regard to matters of public health including fire hazard, but must ignore policy considerations - in refusing the licence the Urban Council had based its decision upon considerations of public health and not on matters of policy - the applicant was treated fairly and in accordance with natural justice - application for judicial review was refused.

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JUDGMENT

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1. This is an application for judicial review leave having been granted by Deputy Judge Nazareth on the 6th December 1984. Reliefs are sought by way of mandamus, prohibition and or certiorari. The applicant also seeks certain declarations.

FACTS

2. The applicant is the general manager of the Sun Hing Fishing Development Company which carries on business in Aplichau.

3. In 1983 the company obtained a vessel without an engine licensed by the Director of Marine with a Class III fish dealer's licence. The vessel was intended to be used for the sale of fresh live fish to people coming aboard from the shore, and was permanently tied up to the water front at the Jumbo pier in Aberdeen harbour.

4. On the 5th April 1984 the applicant was charged with carrying on the food business of a fresh provision shop for the sale of fresh fish including live fish on the vessel without a licence contrary to By-law 32(1)(d) of the Food Business By-laws made under Section 56 of the Public Health and Urban Services Ordinance Cap. 132. At the hearing of the summons before a Magistrate on the 17th October 1984 the applicant admitted the facts, but pleaded not guilty on the grounds that a licence was not required. However, he was convicted and sentenced to be bound over for a period of 18 months. No appeal was lodged against the conviction or sentence.

5. On the 14th April 1984 the applicant applied to the Urban Council for a fresh provision shop licence (hereafter referred to as the "licence"). The Urban Council acknowledged receipt of the applicant's application on the 16th April 1984. The letter included a warning that if the applicant started business before a licence was granted he could be liable to prosecution and subject to daily fines. An information leaflet entitled "How To Apply For A Fresh Provision Shop Licence" was enclosed with the letter. The application was refused by the Urban Council on the 2nd June 1984.

IS A LICENCE REQUIRED

6. I will first of all deal with the submission of Mr. Bernacchi who appeared for the applicant that a licence was not required in the circumstances of this case because the jurisdiction of the Urban Council does not extend to the waters of Hong Kong. It is not in dispute that the Food Business By- Laws only apply to the urban areas of Hong Kong which of course, includes Aberdeen. Waters of Hong Kong is defined in Section 3 of the Interpretation and General Clauses Ordinance Cap. 1 to include all waters, whether navigable or not, included in the Colony. Mr. Bernacchi contends that a restricted meaning should be adopted for no reference is made to waters in the Public Health and Urban Services Ordinance or in the Food Business By -Laws. However, Section 2(l) of the Interpretation and General Clauses Ordinance provides that the definition of waters of Hong Kong shall apply to any other ordinance that is in force unless a contrary intention appears. In the absence of a contrary intention I am satisfied that the jurisdiction of the Urban Council extends to the waters of Hong Kong in the urban areas. A licence is therefore required by virtue of Rule 32(l)(d) of the Food Business By -Laws.

RELIEFS SOUGHT

7. The applicant contends that the procedure adopted in considering the application for the licence was wrong in law, contrary to natural justice, and was made as a result of an unreasonable exercise of the discretionary power of the officers of the Urban Services Department, the Marine Department and or other officers of the Crown and was accordingly ultra vires. The last ground can be disposed of right away because it is clear that the decision to refuse the application was not made by members of the Urban Services Department or any other department, but by the Delegated Member of the Food Hygiene Select Committee of the Urban Council which was the appropriate Committee.

PROCEDURE TO OBTAIN LICENCE FROM URBAN COUNCIL

8. Mr. Yue a staff officer of the licensing section of the Urban Services Department described the procedure for obtaining a licence in an affidavit dated the 14th December 1984. He says that the licensing of food business is exercised by the flood Hygiene Select Committee of the Urban Council. The power to grant, refuse, cancel or suspend licences under the Food Business By -Laws is delegated by the Committee to individual members of the Committee known as "Delegated Members". The Delegated Member who dealt with the application in this case was Mr. Howard Young. Although Mr. Bernacchi did not accept the validity of the delegation to a single member he did not rely on this submission. In any event I do not consider that the delegation was invalid.

9. Upon receipt of an application for a licence or for other licences the Urban Services Department which is the executive arm of the Urban Council may need to refer the application to other Government departments who may be interested for their comments. If no objections are received from other Government departments a standard "Letter of Requirements" is sent to the applicant which sets out details of health requirements to be complied with. If the requirements are met by the applicant an inspector of the Urban Services Department will visit the premises for confirmation and if he is satisfied a licence will be issued. However, the "Letter of Requirements" will not be sent if an objection has been made by another Government department.

10. If a Government department that is interested objects to the issue of a licence the application is referred with the recommendation of the Assistant Secretary of the Urban Council to the Delegated Member for his decision. The Delegated Member will either grant or refuse the licence or refer the application to the Select Committee for a decision.

CONSIDERATION OF APPLICATION BY URBAN COUNCIL

11. After the applicant's application was received the Urban Council referred the matter to the Director of Marine for his comments. The Director of Marine replied on the 3rd May 1984 where relevant as follows:-

''...................................... 2.                 Mr. Keung's application for a fresh provision shop licence is not supported in principle on the following grounds :

The Urban Council responded by enquiring from the Director of Marine whether the objection was an outright objection which could not be overcome by the applicant, and confirmation that difficulties in controlling the number of people on board would lead to a risk to public safety. The Director of Marine replied that the Application was not supported because the vessel's licence would not be approved for the purpose of a floating market.

12. The application was then submitted by the Assistant Secretary of the Urban Council to the Delegated Member Mr. Young with a recommendation that the application be refused in Mum the objection received from the Director of Marine and the general policy 25 paragraph 2(e) set out on page 31 of "A Guide to Licensing".

13. This provision reads:-

Mr. Young's reasons for his refusal to grant a licence are set out in his affidavit dated the 22nd December 1984 and I quote from the relevant paragraphs as follows:-

The Urban Council informed the applicant that the application and been refused in a letter dated the 7th June 1984 and set out the reasons for the decision. The letter reads:-

14. The decision of the Urban Council is not final for if an application is refused the applicant may pursuant to Section 125(9)(a) of the Public Health and Urban Services Ordinance apply to the licensing authority for a review within 7 days. A final appeal by way of petition lies to the Governor in Council under Section 125(10) of the Ordinance within 14 days after notification by the licensing authority of their decision. The applicant chose not to pursue these remedies.

CASE FOR APPLICANT

15. The gravamen of Mr. Bernacchi's argument is that the Director of Marine's objection to the application amounted to a usurpation by the department of the decision required to be made by the Urban Council. He submitted that the Urban Council is the relevant authority under the Ordinance for the determination of the application with regard to the requirements of public health. That as the issue of public health was never considered by the Urban Council the application was not properly before the Committee and the decision having been based upon the policy reasons of the Director of Marine was a nullity.

16. Mr. Bernacchi contended that the views of the Director of Marine should never have been canvassed. In particular he said that fire safety is the responsibility of the Director of Fire Services and not the Director of Marine, and referred to By-law 34B of the Food Business By -Laws which provides:-

        "No licence shall be granted by the Council under by -law 32 unless the applicant for such licence produces to the Council such evidence as the Council shall require that the premises in respect of which the application is made comply with any requirements issued by the Director of Fire Services.".

However, this was not the usual run of the mill application in as much as the premises were not on dry land, but on the water. It is pertinent to observe that it is the policy of the Urban Council to consult the Director of Marine when an application is made for a licence for a marine restaurant. The Director of Marine is the department that is concerned with the classification and licensing of vessels under Regulation 2 of the Merchant Shipping (Miscellaneous Craft) Regulations Cap. 281. Drawing an analogy with a licence for a marine restaurant I can see no valid reason why the Director of Marine should not be consulted upon the present application, and in my opinion it would have been most unwise not to have done so. The Director of Marine has an interest in this case and he is entitled to have his views taken into account. On the other hand Mr. Bernacchi submitted that if it was right to consult the Director of Marine there was a lack of detail concerning the risk of fire hazard. He also critised the subsequent refusal by the Director of Marine to supply information to enable the applicant to take remedial measures. Whether remedial measures could be taken is a matter for the applicant to pursue with the Director of Marine. It is not relevant for the purpose of this judgment for I am not concerned with the merits of the decision, but with the decision making process. Mr. Bernacchi further submitted that a condition could be made to the licence limiting the number of persons who could be on board the vessel at the same time. However, this argument goes to the merits and is also irrelevant.

17. The effect of the Director of Marine's memorandum was to draw the attention of the Urban Council to two matters that could affect public health together with two other issues that are matters of policy. I agree that the policy considerations were irrelevant to the decision to be made by the Urban Council and should therefore be disregarded.

18. The object of the legislation for the issuance of a licence is to ensure that fresh provision shops maintain a good standard of hygiene for the benefit of the community. However, I do not accept that the wider requirements of public health in the nature of public safety can be ignored when a decision is to be made. Risk to public health including fire hazard is as I have said specifically referred to in the general policy "A Guide to Licensing" and must be taken into consideration when an application is decided.

19. The question I ask myself is whether Mr. young was influenced by questions of policy with which he was not concerned or did he determine the application in accordance with considerations of public health. In my judgment when he came to his decision the matter of public safety was upper most in his mind. Having been advised of the risks he acted upon the recommendation made by refusing the application. I am satisfied that the decision was based upon considerations of public health and not upon matters of policy.

20. I will now turn to some other matters referred to by Mr. Bernacchi. He contended that the "Letter of Requirements" should in any event have been sent to the applicant. Apart from being contrary to the practice of the Urban Council not to send out the letter if the application is refused I can see no reason for so doing. Again no useful purpose would have been served by sending an inspector to inspect the vessel if the application had already been refused.

21. The applicant said that he had been informed by other traders that if an application is made for a licence provisions can be sold whilst the application is being processed by the Urban Council. There was no evidence to support this allegation. However, Mr. Bernacchi submitted that as the allegation had not been denied it must be true. On the contrary having regard to the clear warning given in the letter and leaflet of the Urban Council to which I have already referred I find such an assertion to be absurd and it is accordingly rejected. Upon the facts there was a discretion to prosecute which was properly exercised.

22. In my opinion the procedure adopted in this case was correct. The applicant was treated fairly and in accordance with natural justice. Accordingly the application for judicial review is refused.