Gopal Sri Ram JCA (delivery dissenting judgement):

The appellants are stall holders at the Fuji Market in Tawau. The market stands on privately owned land. It was established in by the previous proprietor to the land after obtaining approval from the respondent local authority to construct stalls. The appellants had no contractual relationship with the respondent. They merely paid all dues to the land owner who paid them on to the respondent. Later, the land in question was transferred to ATS Land Sdn Bhd (‘ATS’) which is the present registered proprietor. As before, ATS collected the licence fees from the appellants and paid them on to the respondent. It is in evidence and freely admitted by the respondent that in 1998 its president attended a lunch organised by the stall holders and, in his speech made to the gathering, represented that the appellants could continue to do business at Fuji Market. However, by a letter dated 30 April 2001 addressed to ATS and received by it on 28 May 2001, the respondent terminated the operation of Fuji Market. Following some correspondence, the respondent, on 19 October 2001 wrote to the appellants and other stall holders asking them to move out of Fuji Market. There is material on record to show that the respondent had leased of a piece of land owned by it to a company Renung Abadi Sdn Bhd (‘Renung’) and granted it the right to operate another market there called the Xin Ann Market. The lease was for 25 years and there is a term in it that the respondent is not to grant or renew permission to anyone to operate a market within a three mile radius of Xin Ann Market. Matters pertaining to the Fuji and Xin Ann Markets were discussed at a meeting of the respondent held on 30 April 2001. The minutes of that meeting show that Renung had commenced an action against the respondent for damages for breach of the terms of the lease and that it had called on the respondent to close down the Fuji Market which the respondent had agreed to do. Later, the appellants instituted proceedings for judicial review and on 17 January 2002 obtained leave. Twelve days later, on 29 January 2002 the stall holders at Fuji Market were offered places at the Xin Ann Market. Some of the stall holders moved there. But the appellants refused. They pursued their application for judicial review in which they sought certiorari and declaratory relief. The High Court dismissed their application and they have appealed to this court. So much for the facts.

Although a number of grounds were argued before the learned judge and before us, there is really only one point that merits consideration. It is the effect in law of the promise or representation — call it what you will — made by the respondent’s president to the gathering at which the appellants were present that they could carry on doing business at the Fuji Market. In my judgment the rights, if any, of the appellants’ in public law fall to be determined by reference to the now well established doctrine of legitimate expectation.

The starting point is JP Berthelsen v Director General of Immigration passage in the judgment of Lord Fraser of Tullybelton in Attorney-General of Hong Kong v Ng Yuen Shiu

Accordingly ‘legitimate expectations’ in this context are capable of including expectations which go beyond enforceable legal rights, provided they have some reasonable basis: see Reg v Criminal Injuries Compensation Board Ex parte Lain Reg v Board of Visitors of Hull Prison Ex parte St Germain (No 2)

In Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasama-sama Serbaguna Sungai Gelugor dengan Tanggungan R v Devon County Council; ex parte Baker

Sometimes the phrase (legitimate expectation) is used to denote a substantive right: an entitlement that the claimant asserts cannot be denied him. It was used in this sense and the assertion upheld in cases such as R v Secretary of State for the Home Department, ex p Asif Mahmood Khan R v Secretary of State for the Home Department, ex p Ruddock R