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Shun Fat Container Service Co Ltd. And Others v Commissioner For Transport

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date21 June 1989
Subject MatterMiscellaneous Proceedings
Judgement NumberHCMP217/1989
CourtHigh Court (Hong Kong)
HCMP000217/1989 SHUN FAT CONTAINER SERVICE CO LTD. AND OTHERS v. COMMISSIONER FOR TRANSPORT

HCMP000217/1989

[A decision made for proper reasons and for those reasons alone will not be reviewed-merely because the material before the decision maker included irrelevant matters.]

1989 M.P. 217

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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IN THE MATTER OF ORDER 53 RULE 3 OF THE RULES OF THE SUPREME COURT

AND

IN THE MATTER OF A DECISION OF AND ON BEHALF OF THE COMMISSIONER FOR TRANSPORT MADE ON THE 29TH DAY OF DECEMBER, 1988

AND

IN THE MATTER OF REGULATION 14 OF THE ROAD TRAFFIC (TRAFFIC CONTROL) REGULATIONS, CAP. 374

AND

IN THE MATTER OF AN APPLICATION BY SHUN FAT CONTAINER SERVICE COMPANY LIMITED, LEAN TA TRANSPORTATION COMPANY LIMITED, HOP WING TRANSPORTATION COMPANY (a firm), SANWAY SERVICES LIMITED, TANG U UN (or spelt as TANG YU YUEN) by its registered trustee TANG TING CHAN alias TANG YEUK FAN and DAVID K.K. CHAN

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BETWEEN

SHUN FAT CONTAINER SERVICE COMPANY LIMITED

 1st Applicant

LEAN TA TRANSPORTAION COMPANY LIMITED

 2nd Applicant

HOP WING TRANSPORTATION COMPANY (a firm)

 3rd Applicant

SANWAY SERVICES LIMITED

 4th Applicant

TANG U UN
(or spelt as TANG YU YUEN)
by its registered trustee
TANG TING CHAN alias TANG YEUK FAN

 5th Applicant

DAVID K.K. CHAN INVESTMENTS COMPANY LIMITED

 6th Applicant

AND

COMMISSIONER FOR TRANSPORT

 Respondent

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Coram: Godfrey, J

Date of Judgment: 21 June 1989

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J U D G M E N T

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1. This is an application for judicial review. The applicants use some land near Tai Po Tau village as a container park. The respondent (the Commissioner for Transport) hags decided (he says, "for reasons of road safety") that all vehicles exceeding 11 metres in length should be prohibited from entering the road which gives access to the land. The applicants are understandably aggrieved by this decision. They complain that the respondent took his decision, not just for reasons of road safety, but for other reasons as well, namely (i) that pedestrians were walking on the road; (ii) that the vehicular traffic on the road created noise and dust. They also complain that the respondent, in deciding as he did, failed to give any regard to the consequences to the applicants that might follow from his decision; and failed to give any regard to the feasibility of improving the safety of the road without restricting the applicants' use of it.

2. The legislative background is simple. The respondent has power to make regulations about road traffic: see section 11 of the Road Traffic Ordinance, Cap. 374. Under section 11, he has made the Road Traffic (Traffic Control) Regulations. By Regulation 14, he has taken power to designate any area as a prohibited zone, in which the driving of any specfied class or description of motor vehicles on any road is prohibited. The power is not in terms restricted; but I have no doubt (and it is not contended otherwise) that it may be exercised only for traffic control purposes. An exercise of the power for these and other purposes would be open to review : see Sadler v. Sheffield Corporation [1924]1 Ch. 483. In the present case, the respondent has given "road safety" as his reason for exercising the power. I have no doubt (and again if is not cotended otherwise) that "road safety" is a proper traffic control purpose. The applicants say that, having given "road safety" as the reason for his decision, the respondent cannot advance any other reason to justify it. The respondent is content with this. He says that that was indeed the reason, and the only reason, for his decision. The applicants say that it was not. The only issue is : Did the respondent arrive at his decision for reasons other than "road safety" reasons? All else (as it seems to me) is irrelevant. It is not for the court to decide, on an application for judicial review, whether the respondent could or even (in the Court's view) should, have arrived at a different decision, so long as the decision was not such as to be an affront to reason.

3. The facts are as follows :-

4. On 6th June, 1988, one Tang Tit-heung, Village Representative of Tai Po Tau Village, wrote to the Transport Department. Mr Tang wrote to express the concern and unrest of the villagers over the use of the land in question for parking container trucks and container storage. He complained that there were presently about 60 to 70 container trucks making daily use of this parking lot. The volume of traffic, said Mr Tang, had caused intolerable disruption to the tranquil village life and was potentially dangerous. He instanced the use of the road by pedestrians at the same time as the container trucks. He added that the road had not been designed to take such a load as that of the container trucks, and he suggested that the concrete slabs which formed the cover of a ditch traversing the road could easily give way, rendering the container traffic at that location very accident-prone. He also complained that the noisy and frequent container traffic had seriously disrupted the classes of Kai Chi Primary School (which is built upon land abutting the road). He asked that steps should be taken to restrict or ban the road for the passage of trucks.

5. On 27th June, 1988, a Mr Bok Kwok-ming, an engineer employed in the Transport Department of the Hong Kong Government inspected the road. His observations are in evidence. They are as follows :

1. The road is approximately 130 metres in length and is, in general, 3 metres wide with no proper footpath. It is the sole access road for Tai Po Tau Village and the container truck carpark;

2. Pedestrians, because of the narrow footpath/verges, he had seen walking along the carriageway. When container trucks and pedestrians, in particular old people and children, were using the road at the same time, the situation was hazardous. The pedestrians were forced to the road sides in orders to give way to the container trucks. The drivers of the container trucks, because of the size of the vehicles, often did not have good vision of the pedestrians;

3. When container vehicles entered the road, the rear wheels mounted the narrow footpath. The portion of north side footpath/verge near the road entrance had been crushed by such action;

4. Single lane two-way traffic was in operation. With no passing bays provided, reversing of vehicles was necessary when two vehicles travelling in the opposite direction met. This situation was particularly dangerous when considering the limited rear vision of a container truck driver. He saw one container truck entering the narrow section of the road while another container truck was coming out of it. The first truck then reversed until its rear part was protruding onto the major road;

5. The road surface showed signs of undue wear and tear indicating that it was not designed for carrying heavy goods vehicles, and in particular the concrete covers of the ditch (to which I have already referred) he had seen to be seriously cracked. Furthermore, tension cracks were seen at a portion of the road near the entrance suggesting that the road had subsided slightly due to the heavy loading of the container trucks;

6. The railway embankment forms a "natural" barrier to the villagers. The subway (the existence of which was pointed out to me on a sketch of the area) had become a desired route for villagers and school children to reach public transport services along the Tai Po Road to Tai Wo. In so doing, they had to walk along and across the village road and therefore conflict between pedestrian and vehicular traffic was enhanced;

7. When container trucks used the road, they generated noise and dust nuisance;

8. The frequency of container trucks using the road was high; more than ten trucks were seen using the road in half an hour during his visit.

9. At the end of school, school children, unattended by adults, were seen running along and across the road to the subway. Although the situation was not particularly dangerous compared with the rest of the day, the existence of large container trucks and running school children within the same section of the narrow road was perturbing.

6. The applicants dispute the accuracy of some of this; but the fact is that Mr Rok formed the view that container trucks exceeding 11 metres in length should be prohibited from using the road. He said "I am of the view that the existing road conditions on Tai Po Tau village road are hazardous and, from a road safety point of view, unsafe." (In relation to this evidence, it is fair to observe that several of the points made by Mr Bok are concerned with other matters than road safety. Some of them are matters of background; and some of them are criticisms of the road surface rather than of the safety of users of the road.)

7. Also on 27th June, 1988, the Supervisor of the Kai Chi School wrote to the Director of the Education Department. The Supervisor wrote:-

"To the right of our school is a minor road ten feet wide. Many container lorries travel on it every day, making a very loud noise thus affecting the mood of out staff and students. Moreover, since so many container lorries travel to and fro, students crossing the minor road are also affected. We hope that the authorities concerned will look squarely at this matter and do something to improve the situation for the students' benefit."

8. On 4th July, 1988, the Executive Secretary of the Transport Complaints Unit wrote to the respondent referring to a Mr P.K. Tang who, he said, had told the Unit that the area had been used as a container depot and...

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