Chan Mo on and Another v. Municipal Services Appeals Board

HCAL 210/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 210 OF 2015

___________________

___________________

____________________

J U D G M E N T

____________________

1.The 1^st applicant was the holder of a liquor licence in respect of the premises “Beat” situated at LG/F, Tower 1, Tern Centre, 62 Jervois Street, Central, Hong Kong. The 2^nd applicant operated and owned “Beat”, which commenced business in 2011 and the liquor licence was subsequently transferred to the 1^st applicant in September 2012.

2.In November 2012, shortly after a 12 months renewal of full licence was granted to the 1^st applicant, he committed a breach of selling liquor beyond the prescribed hour in January 2013.

3.Having been convicted of such in July 2013, his application to extend liquor selling hour to 4 am was refused by the Liquor Licensing Board (“LLB”), and his subsequently appeal to the Municipal Services Appeals Board (“MSAB”) against that was refused in April 2014.

4.In June 2014, the 1^st applicant was summonsed for selling liquor beyond permitted time and fined HK$5,000.00.

5.In both June and July 2014, the Licensing office received complaints from the public through District Council regarding the premises, whilst the 1^st applicant again applied to renew the licence and amend the condition of the licence on 29 July 2014 in the hope that they would be allowed to sell liquor until 4 am.

6.Further breaches were observed by police decoy and a neighbor, Mr Ko, who successfully purchase alcohol in “Beat” beyond the permissible hours.  The 1^st applicant was summonsed.

7.Police replied to the consultation of the Licensing office that between 1 August 2013 and 14 October 2014, there were 29 cases of complained noises and two cases of Wounding.

LLB and MSAB Hearings from November 2014

8.On 4 November 2014, the LLB considered the 1^st applicant’s application, but concluded that he had failed to manage the premises properly and revoked his liquor licence.  The 1^st applicant lodged his appeal against the LLB decision.  On 10 November 2014, he applied to the MSAB for interim renewal of the liquor licence pending final determination. The Board granted an interim renewal of the licence with the same conditions as granted by the LLB on 8 November 2013.

9.The original hearing date before the MSAB, set down for January 2015, was directed to be adjourned to await the outcome of the two summons that the 1^st applicant faced.

10.The appeal was heard on 25 September 2015 and MSAB handed down decision to dismiss the appeal of the 1^st applicant on 16 October 2015 appeal.

Grounds of Review

(1) Illegality: taking into account unproved allegations and irrelevant objections - allegations by Mr Ko and the adverse findings in relation to the internal staircase against the interest of the applicants;

(2) Illegality: failing to give reasons;

(3) Illegality: failing to take into considerations matters that should have been considered, namely, that the 1^st applicant managed the premises impeccably for the past 10 months before the appeal came on; and

(4) Illegality: failing to act reasonably against the legitimate expectation of the applicants by revoking the licence in one go when there were other less drastic alternatives available.

Judgment

11.All the grounds of review can be put into one, shortly, namely, that the Board’s decision to revoke the licence was an illegality, in that the Board in deciding that 1^st applicant was not a fit and proper person to hold a licence, committed errors of law: it took into account irrelevant or mistaken considerations, and failed to take into account relevant materials or factors. Further, the applicants complained that the Board failed to give sufficient reasons in coming to the conclusions it did.

12.This application can be disposed of shortly.  The test at the application for leave stage is whether the grounds are reasonably arguable.  The court does not look into the merits of the decision.  The Board has examined the evidence before it, including that of a neighbor, Mr Ko, who told the Board that he had on a number of occasions successfully purchased alcoholic drinks from the premises after licenced hours.  Receipts showing such purchases were produced.  The Board was impressed with his evidence.

13.It is clear from the Board’s decision that it did take into account the alleged good conduct during the 10 months period between the grant of the interim licence and the Board hearing.  However, that factor was weighed against the breaches after his appeal to the MSAB against a refusal to extend licencing hour to 4 am was dismissed on 28 April 2014.  In the view of the Board, those breaches and the successful purchase of alcohol by Mr Ko on various after licenced hours demonstrated “a flagrantly disregard of the law by Mr Chan” and outweighed his subsequent well behavior when an interim licence was in place.

14.The Board being a trier of fact was entitled to make findings as it did.  I agree with the decisions of the Board.  The reasons were sufficient and I do not find that their reasoning process was flawed in any way.  Whilst the conclusion that the staircase was in effect an extension of the premises without approval being sought first might have been based on misunderstanding of some of the facts, this consideration did not render the resulting decision to fall outside the range of possible, acceptable outcome which are defensible in respect of the facts and the law.  In fact, in the proceedings of the hearing endorsed by the Chairman of the Board, it is clear that the Board has taken into account Mr Halkes’ submission that the issue of the internal staircase was not the primary issue in this case.  Whether 1^st applicant was a fit and proper person was.

15.In my judgment, the applicant failed to show that his grounds of judicial review are reasonably arguable with a realistic prospect of success^[1].

16.The application for leave to apply for judicial review is therefore refused.

Mr Adrian J Halkes, leading Ms Shirley Hung, Counsel instructed by Dundons, for the 1^st applicant & the 2^nd applicant

Mr Stanley Ng, Counsel and Mr David Yim, Government Counsel of the Department of Justice, for the putative interest party

Municipal Services Appeals Board (attendance excuse)