Ruling allows trucks to still use short cut where boy died

PUBLISHED : Saturday, 01 September, 2007, 12:00am
UPDATED : Saturday, 01 September, 2007, 12:00am

Trucks can continue to use Fairview Park Boulevard as a short cut between the border and New Territories container depots after the government won a battle to keep a privately owned section of the road open.

In a judgment he acknowledged would cause the developer a degree of disillusionment, Recorder Gerard McCoy SC in the Court of First Instance dismissed an application for a judicial review into the government's 2005 refusal to ban large trucks from Fairview Park Boulevard.

A privately owned section of the road, between Castle Peak Road and Kam Pok Road, is used as a convenient short cut by truck drivers between the Lok Ma Chau border crossing and container depots scattered throughout the New Territories.

Fairland Overseas Development - formerly known as Canadian Overseas Development - said it had a contract with the Transport Department to the effect that in exchange for dropping its objections to the resumption of land for Kam Pok Road, the government would erect and enforce signs banning container trucks from turning on to the boulevard.

Fairland complained that the trucks constituted not only a safety hazard but were also damaging the road while reducing the quality of life for the area's residents. The signs have been erected, but they remain covered, and have no legal effect.

The hearing was brought forward from October after protests at Fairview Park in response to the death in January of a 12-year-old boy who was killed after being knocked off his bicycle and run over by a passing truck.

The government argued before Mr McCoy that it could never have made an agreement with Fairland, because it does not have the power to contract out of its responsibilities regarding the ongoing management of public roads, in the interests of Hong Kong society.

The effect of the contract, if it existed, would have been to prevent the government from ever allowing large trucks to enter the boulevard, even at its public sections, no matter what the circumstances. And such a restraint on the government's discretion was unlawful, it was argued.

Mr McCoy agreed, but noted that it was highly undesirable for the government to lead people to believe that it had a contract with them when in fact it did not. 'There is something quite unedifying in the government, having entered a contract, later disowning it on the basis that it did not have in law the competence to enter it,' Mr McCoy said. 'But it is a lawful and indeed necessary posture to adopt [in these circumstances].

He said the contract did not just impair the government's discretion over road policy - it denied it. Such an arrangement effectively put an aspect of public policy into private hands, which was illegal. 'Public duties are entrusted to be exercised for the welfare of the public. The regulation of traffic is not a commodity that is for sale any more than is road safety,' Mr McCoy said.