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Lin Kai Yuen v Director Of Agriculture, Fisheries And Conservation

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date16 February 2011
Year2011
Judgement NumberHCAL134/2009
Subject MatterConstitutional and Administrative Law Proceedings
CourtHigh Court (Hong Kong)
HCAL134/2009 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

____________

BETWEEN
LIN KAI YUEN (連啟元) Applicant

and
DIRECTOR OF AGRICULTURE,
FISHERIES AND CONSERVATION		 Respondent
____________

Before: Hon Au J in Court

Date of Hearing: 24 August & 22 November 2010

Date of Judgment: 16 February 2011

_______________

J U D G M E N T

_______________

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 4th 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 4th Schedule.

14. Prior to February 2006, under item 7 of the 4th 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 4th 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 4th 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...

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