Li Wai Hung Cesario v. Administrative Appeals Board

CACV 250/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 250 OF 2015

(ON APPEAL FROM HCAL NO. 18 OF 2015)

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REASONS FOR JUDGMENT

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Hon Cheung JA :

I. The appeal

1.1.The applicant applied for a licence under section 22(1)(b) of the Gambling Ordinance (Cap. 148) to operate a mahjong parlour on Portland Street, Mongkok, Kowloon (‘the premises’). The application was refused by the Public Officer who was appointed by the Secretary for Home Affairs (‘the Secretary’) and responsible for the granting of licences.  The applicant appealed to the Administrative Appeals Board (‘the Board’) against the decision.  The appeal was dismissed. He then applied for judicial review against the decision of the Board.  Zervos J refused his application.  He appealed to this Court.  We dismissed the appeal at the conclusion of the hearing.  I now give the reasons for the dismissal.

1.2.The Board did not appear before the Judge and this Court.  The Public Officer appeared and opposed the judicial review and appeal as an interested party.

II. Background

1) The applicant’s premises

2.1.Two of these are within a 100 metre radius of the premises, while three others are located just slightly beyond the 100 metre radius.

2) The Public Officer’s view

2.2.The Public Officer rejected the application on two grounds :

2.3.The applicant is not suitable to hold a mahjong licence in view of his inadequate knowledge and lack of experience required in managing a mahjong parlour, and that he does not have a thorough understanding of the role of a licensee (‘the suitability of the applicant ground’).

2.4.The premises are not suitable for the establishment of a new mahjong parlour for its close proximity to five other existing mahjong parlours, leading to an undue concentration of mahjong parlours in the locality (‘the suitability of the location ground’).

3)  The Guidelines

2.5.The Secretary had issued a document entitled ‘Brief Policy Guidelines on Issue of Mahjong/Tin Kau Licence’ (‘the Guidelines’).  The Guidelines listed the major factors that the Public Officer will have to consider in an application for mahjong parlour licence :

(i)  Cogent need for a lawful gambling outlet

Government’s policy is that a mahjong / tin kau parlour (‘MJP’) should, as a general rule, be allowed to be set up only if a cogent need for such an outlet is established.

(ii)  Suitability of the applicant

The applicant should be found suitable for managing an MJP.

(iii) Suitability of the proposed premises

The proposed premises should be found suitable for use as an MJP from structural and means of escape points of view, as well as in terms of the lease of the land.

(iv) Suitability of the proposed location

The location of the proposed premises should be found suitable.  As a general rule, the proposed MJP should not be located within a purely residential neighbourhood or in close proximity to an educational or religious institution or an institution or facility catering to children and youths.  Besides, the establishment of the proposed MJP should not result in an undue concentration of MJPs in the locality.

(v)  Local reaction

The Public Officer would assess the local reaction to the establishment of the proposed MJP and the potential objection if the application is approved, with the assistance of the relevant District Officer.

(vi) Sympathetic consideration for a ‘relocation’ case

An application may be considered with some degree of sympathy if a licensee relocates his premises to a site within the immediate neighbourhood, if the application is made when his licence is still in force, and if the new application does not lead to any increase in the number of gambling tables.  In such cases, however, the other considerations as stated under these guidelines will continue to apply.

4)  Previous application of the same premises

2.6.The Public Officer had previously on 5 August 2011 in another application for mahjong parlour licence made by another applicant in respect of the same premises refused to grant the licence.  Appeal against the decision was refused by the Board in that case on 5 July 2012 (AAB No. 1/2012).  Amongst the reasons relied upon by the Board in that case was that there were then in existence four other mahjong parlours in the vicinity and to grant an additional licence will result in an ‘undue concentration of mahjong parlours in the locality’.

III.  The appeal to the Board

3.1.The appeal to the Board was to challenge both the suitability of the applicant ground and the suitability of the location ground. 

3.2.In respect of the suitability of the applicant ground, the applicant relied on three matters :

1) The Public Officer committed an error of law by requiring the applicant to have the relevant experience in managing a mahjong parlour.

2) The Public Officer failed to take into consideration all relevant considerations.

3) The Public Officer over-relied on an interview conducted by the police on 10 July 2013 (‘the Police Interview’).

3.3.In respect of the suitability of the location ground, the applicant relied on two matters :

1) the Public Officer failed to take into account all relevant considerations, namely, failure to take into account the following consideration :

(1) the particular features of the locality,

(2) the existence of other entertainment establishments in the vicinity, and

(3) that the premises are located in an entertainment area.

2) the Public Officer failed to give adequate reasons, namely, failure to give adequate reasons about

(1) the test for close proximity;

(2) the reason why a sixth mahjong parlour in the circumstances would lead to an undue concentration; and

(3) the weight given to the relevant fact that the locality is in an entertainment area where mahjong establishments are expected to be present.

3.4.The Board rejected the challenges.

IV.  The judicial review

4.1.Before the Judge the applicant relied on six grounds to challenge the decision of the Board :

1) Suitability of location ground : irrationality and failure to give adequate reasons; inconsistency in defining ‘locality / close proximity’ for assessment of undue concentration.

2) Suitability of location ground : illegality / failure to take into account relevant consideration as to

(1) use of the Secretary’s map only;

(2) distribution of mahjong parlours; and

(3) degree of increase in gambling tables and floor space; and

(4) failure to give adequate reasons on the same.

3) Suitability of location ground : illegality / misapplication of the Guidelines as to the term ‘undue concentration’ as a numbers game without regard to the context of entertainment nature of area.

4) Suitability of the applicant ground : unreasonableness; over-reliance on Police Memorandum and/or Police Interview.

5) Suitability of the applicant ground : illegality; failure to take into account relevant considerations being information reflecting field experience, licensing familiarity and understanding of licensee responsibilities.

6) Suitability of the location and of the applicant ground : illegality and failure by the Board ‘to conduct a hearing de novo via failure to exercise its own independent discretion’.

4.2.The Judge rejected all the six grounds.

V.  Grounds of appeal

5.In respect of this appeal, the applicant relies on three grounds :

1) The Judge erred in not finding that the Board failed to exercise its own judgment to determine whether the applicant was suitable for managing a mahjong parlour.  This concerns the fifth ground of review.

2) The Judge erred in not finding that the Board failed to exercise its own judgment to determine whether the locality of the proposed mahjong parlour would be suitable.  This concerns the sixth ground of review.

3) The Judge erred in not finding that the Board, when considering whether the locality of the proposed mahjong parlour would be suitable, had wrongly considered only the number of parlours which would be situated in the subject locality and had failed to consider other relevant factors.  This concerns the third ground of the review.

VI.  Nature of the hearing of the Board

6.1.There is no dispute by the parties that the nature of the hearing of the Board is by way of rehearing on the merits and not simply by way of review.  In other words the Board’s jurisdiction is appellate and not merely supervisory.  Although the word ‘rehearing’ is not used, section 21(1) of the Administrative Appeals Board Ordinance (Cap. 442) which governs the conduct of the proceedings of the Board, confers extensive power on the Board consistent with the jurisdiction to rehear the case on the merits.  Thus it has the power to,

1) receive evidence both oral and documentary (section 21(1)(b)).

2) require any person to attend before it to give evidence and produce documents (section 21(1)(c)).

3) examine witnesses and compel them to answer questions (section 21(1)(e)).

4) confirm, vary or reverse the decision that is appealed against (section 21(1)(j)).

6.2.The distinction between a tribunal exercising appellate jurisdiction to rehear the case on the merits on the one hand and exercising supervisory jurisdiction on review only on the other hand is recognized in the first instance decisions referred to in this appeal including Ko Siu Luen vAppeal Tribunal (Buildings) [2012] 1 HKLRD 149 at paragraphs 47, 52-55 (a case dealing with the Appeal Tribunal (Buildings)) and Happy Pacific Limited and another v Commissioner of Police, unreported, HCAL 115/1999, judgment dated 11 November 1999, at p.14.  The Board in Chan Wing Sang v Commissioner of Police (AAB No. 220/2013, Date of decision: 17 April 2014 expressly referred to these two decisions.

6.3.The Board in this case was likewise aware of this jurisdiction as it has expressly referred to its appellate jurisdiction in its written decision.  The Chairman, Mr Eugene Fung SC was a member of the Board in Chan Wing Sang. 

6.4.Nonetheless Mr Cooney SC for the applicant maintains that the Board had failed to exercise its appellate jurisdiction properly and when the Judge rejected this ground of challenge, he had wrongly assumed that the Board had exercised its own judgment.  To this I will now turn.

VII.  Discussion on the challenges

1)   Ground 1 : Suitability of the applicant

7.1.Mr Cooney argued that paragraphs 34, 35 and 36 of the Board’s decision indicated that it had merely assumed a supervisory or review jurisdiction and not an appellate jurisdiction.  He relies on Visitors to the Inns of Court, ex p. Calder [1994] Q.B. 1 at p.61H-63A where the English Court of Appeal held that the words ‘it was plainly open to the tribunal to find as it did on the facts’ was the language of review, not appeal, such that the visitors failed to exercise their full jurisdiction but instead exercised only a restricted one.  He submits that the Board’s language in this case similarly indicates the same problem.

7.2.I will set out in full the paragraphs that MrCooney complained of to properly understand the argument :

‘ G2. Alleged Failure to Take into Account Relevant Considerations

34. The Appellant further contended that the Respondent had failed to take the following matters into consideration:

(1) Despite the admitted lack of hands-on experience in managing MJTK parlours, the Appellant has demonstrated a wealth of relevant educational background, training, skills and practical experience in management, property and human resources.

(2) There was an intention to employ experienced staff members in the MJTK parlour industry, positions of which having been advertised, applied for and candidates interviewed and/or identified which could reasonably compensate for the lack of specific and hands-on experience of the Appellant.

(3) Professional advisers, consultants and staff members would be retained to advise on licensing requirements and the relevant statutory and regulatory framework, to provide the advice and assistance specific to the MJTK parlour industry where necessary.

(4) In view of the Appellant’s background and competence, he should be expected to grasp the license conditions and the role of a licensee once given reasonable advice and assistance from retained professionals and experienced business partners.

35. The matters in (1) to (3) are evidence which appeared in the Appellant’s Further Submission dated 17 February 2014 (“the Appellant’s Further Submissions”) and its enclosures.  On the other hand, the matters in (4) are not objective facts that the Respondent could have taken into account, but were in the form of an argument based on (l) to (3).  Accordingly, in the context of the allegation that the Respondent had failed to take relevant matters into consideration, the Board should only focus on matters in (1) to (3).

36. We are not satisfied that the Respondent had failed to take the matters in §§34(1) to 34(3) into consideration in arriving at the Decision in relation to the Suitability of the Appellant Ground.

(1) In the letter dated 12 May 2014 to the Appellant’s solicitors which enclosed the Decision, the OLA expressly referred to the Appellant’s Further Submissions and stated that the “Public Officer has thoroughly considered the application and the documents submitted, as well as the representations made ...”.

(2) Further, in §9(b) of the Respondent’s Statement dated 8 July 2014, the Respondent stated that the points in the Appellant’s written submissions and representations had been thoroughly studied, and referred to the following evidence from the Appellant (which included the matters in §§34(1) to 34(3) above):

“The Appellant has explained his education background, working experience and business/management skills, but he does not have adequate knowledge and experience required in managing a MJ/TK parlour ... The Appellant was also not familiar with the licence conditions, the legislation and the role and responsibilities of a MJ/TK licensee and would rely heavily on others to advise and assist him. He stated that he would recruit ‘deputy licensee’ to assist him in running the MJ/TK parlour ...” ’

7.3.This is the same complaint that had been raised before the Judge and the Judge held that :

‘ 88. Mr Suen [counsel for the Interested Party] points out that the Public Officer took into consideration the relevant material which the Board noted he had done and they agreed with his assessment of the material and his conclusion. He argues that it was open to the Board to do so and they adopted the Public Officer’s reasoning and conclusion on the matter. I agree. The Board was fully entitled to accept and adopt the reasoning and conclusion of the Public Officer in “confirming” his decision.

89. The applicant argued before the Board that the Public Officer had failed to take into account the favourable information about him. He presented this information to the Board which it considered and rejected. There is no substance to this complaint.’

7.4.Mr Cooney argued that the Judge presumed, apparently because the applicant presented paragraphs 34(1) to (3) to the Board, that the Board had exercised its own judgment but the Judge had not identified any analysis of the argument in paragraph 34(4) undertaken by the Board or, using the Judge’s language, he had not identified the Board’s consideration and rejection of the argument in paragraph 34(4).

7.5.In my view this argument has confused the true nature of an appeal by way of rehearing.  Whilst it is in the nature of a rehearing, it is nonetheless an appeal, albeit on the merits of the decision. 

7.6.In an appeal on the merits, the appellant has to say why the decision below is wrong and the tribunal will address these grounds of appeal.  But it does not follow from that that the tribunal is required to perform the task of a first instance decision maker afresh and set out its own findings and reasons for the decision.  This is not how such a tribunal works in reality.  This is more so when the tribunal has rejected the grounds of appeal advanced by the appellant.  If it disagrees with the finding of the decision-maker then it is expected to set out its own finding on a particular matter.  But, if it agrees with the finding, then it can simply adopt these findings as its own.  Generally speaking it is not even necessary for the Board to state that it confirms or adopts such finding.  By saying, for example, the decision maker is not wrong on an issue, by implication it must have confirmed or adopted the finding.  In every case, one does not simply look at the language used but at the substance of the decision in the context of the way of how the grounds of appeal are presented to the tribunal. 

7.7.In this case, the applicant chose to say that the Public Officer had failed to take into account relevant considerations in its decision and that was the way the Board responded to this argument.  It is clear that the factor identified in paragraph 34(4) is not an objective fact but an inference that may or may not be drawn, depending on the circumstances, if the Public Officer had considered the objective evidence in paragraphs 34(1) to (3).  The inference to be drawn does not and cannot stand on its own.  It is in this context that the Board held that it should only focus on the matters in paragraphs 34(1) to (3) when the applicant argued that the Public Officer had failed to take relevant matters into consideration.  This is miles away from the situation of the Board not fully exercising its appellate jurisdiction.

7.8.Mr Cooney referred to the following passage in Ex. p. Calder at page 62 and submitted that the way the applicant presented his case before the Board did not absolve the Board from adopting the correct approach :

‘ Mr. Beloff submits that the visitors did not adopt this approach, but treated the case as one of review. I have no doubt that this submission is correct. The key passage in the judgment of the visitors comes at the point where, after summarising the submission of both Sir William Goodhart on behalf of Miss Calder and Mr. Horgan for the Bar Council, Kennedy J. said:

“It will be clear from this somewhat lengthy decision that we have anxiously considered the whole of the facts of this matter and it seems to us that it was plainly open to the tribunal to find as it did on the facts.”

This is the language of review, not appeal.  Moreover, although the visitors reminded themselves that the tribunal had to adopt the criminal standard of proof, they nowhere directed themselves that they had to adopt the same standard, which such experienced judges would almost certainly have done if they thought the appeal was a rehearing.  The fact that there were submissions made on the grounds that the tribunal’s decision was in breach of natural justice may have misled the visitors into thinking that the whole appeal should have been by way of review only.  Unless the breach of natural justice in some way affected the evidence that was adduced, as opposed to the decision, it had little to do with the visitors’ appellate jurisdiction.’

7.9.The present case is clearly distinguishable from the situation in Ex. p. Calder as the Board had actually reminded itself of the nature of its appellate jurisdiction.  There is no cogent reason to suggest that it did not mean what it had said.

7.10.In my view the Judge is clearly right in rejecting the applicant’s argument on this point.  In any event, even if the applicant succeeds on this issue, he still fails on the suitability of the location issue which I will now discuss.

2)  Ground 2 : Suitability of location

7.11.The ground is closely related to the first ground on the suitability of the applicant.

7.12.Mr Cooney relies on paragraphs 24(4)(b), 26 and 28 of the Board’s decision in support of his arguments.  The relevant paragraphs are as follows :

‘ F2. Alleged Failure to Give Adequate Reasons

23. ―

24. The Board does [not] accept the Appellant’s contentions.

(1) ―

(2) ―

(3) ―

(4) We consider the Appellant's reliance of the three matters misplaced.

(a) First, there is already clear explanation in §6(iv) of the Respondent’s Statement (and the attachments referred thereto) as to why the proposed MJTK parlour was said to be in “close proximity” to 5 other MJTK parlours in the locality.

(b) Second, it is not difficult to understand why a sixth mahjong parlour in the neighbourhood was considered by the Respondent as leading to an undue concentration of similar establishments in the locality.

(c) Third, whatever weight the Respondent attaches to the nature of the neighbourhood cannot have any bearing on whether adequate reasoning has been given.

(5) ―

F3.  Conclusion of the Suitability of the Proposed Location Ground

26. In this case, there are already 5 other MJTK parlours located in the vicinity of the Premises.  The Respondent considered that these 5 existing MJTK parlours and the proposed MJTK parlour would all be within the same locality and that the establishment of the proposed MJTK parlour would result in an undue concentration of MJTK parlours in the locality.  The Board does not consider that the Respondent was wrong or unreasonable in coming to this conclusion. 

27. ―

28. Accordingly, the Board does not accept that the Respondent was wrong or unreasonable in coming to the conclusion that the proposed location is unsuitable for the establishment of a MJTK parlour.’

7.13.As pointed out by Mr Suen for the Public Officer, the Board is addressing the issues in the manner as presented by the applicant.  On the question of suitability of the location, the applicant relied on two matters: failure to take into account all relevant considerations and failure to give adequate reasons.  The merits of the applicant’s case on location were discussed under the first matter under the heading of ‘F1.  Alleged Failure to Take into Account all Relevant Considerations’. 

7.14.Mr Cooney chose to argue that the Board had not properly exercised its jurisdiction by focusing on the Board’s decision under the second matter under the heading of ‘F2.  Alleged Failure to Give Adequate Reasons’, where the applicant’s contention was that the Public Officer had failed to give adequate reasons for

1) the test for close proximity;

2) the reason why a sixth mahjong parlour in the circumstances would lead to an undue concentration; and

3) the weight given to the relevant fact that the locality is in an entertainment area where mahjong establishments are expected to be present.

7.15.In my view this part of the applicant’s case is even weaker than the arguments advanced under the suitability of applicant ground.  I do not agree that paragraph 24(4)(b) showed that the Board had merely assumed the task of review and not rehearing. By then the Board had already addressed the merits of the applicant’s case on location more specifically on the issues of close proximity and undue concentration of the mahjong parlours.  The Board observed at paragraph 24(3) that,

‘ .....We do not think the Respondent’s reason requires great elaboration. After all, it is not easy to see what the Respondent is expected to say to establish undue concentration in the locality other than stating the number of similar establishments in the neighbourhood.’

7.16.On that basis the Board is clearly not expected to elaborate further.  In any event paragraph 24(4)(b) must be read together with paragraphs 24(4)(a).  By reading them together, the Board was clearly apprised of the Public Officer’s view on why the proposed mahjong parlour was in close proximity to the five other mahjong parlours in the locality pertinent to the issue of ‘undue concentration of mahjong parlours’ which I will discuss later.

7.17.In paragraphs 26 and 28, the Board said that it did not consider the Public Officer was wrong or unreasonable in coming to his views on undue concentration and suitability of the location.  By using such words, it does not mean that the Board had not properly discharged its jurisdiction fully.  The challenge now raised by Mr Cooney goes only superficially to the form and not the substance of the decision.

3)  Ground 3 : Illogical fallacy of the Board’s decision?

(1)  Factor (iv) of the Guidelines

7.18.iv) of the Guidelines which deals with the suitability of the location covers three aspects of the location of the mahjong parlour :

(a) it should not be located within a purely residential neighbourhood,

(b) it should not be in close proximity to an educational or religious institution, and

(c) it should not result in an undue concentration of mahjong parlours in the locality.

7.19.As MrSuen had submitted, the first matter is concerned with the negative influence and nuisance of a mahjong parlour in a purely residential neighbourhood and the second matter is concerned with the potential bad influence of a mahjong parlour on children and youths and the embarrassment to the users of such institutions which may be in close proximity to the mahjong parlour.

7.20.In this case the locality is plainly not a purely residential area but in the heart of Mongkok with its many entertainment establishments.  The question of education and religious institutions is also not a relevant consideration.  The only issue is the undue concentration of mahjong parlours in the vicinity.

(2)  Compromise

7.21.My view is that the various factors stated in the Guidelines were interwoven and built upon the Government policy on ‘controlled gambling’ which is to strike a compromise on the polarising views on the demand for gambling and the undesirable aspect of it. As the Board recognized, first, while there is always a demand for gambling, the conduct of gambling activities should be authorised and regulated as unregulated gambling activities can lead to a number of social problems and become a potential source of income for triad and criminal activities.  Second, since it is impossible to reconcile the different views in the community on the extent to which authorised gambling outlets should be allowed to exist, a compromise approach is to allow only a limited number of authorised gambling outlets, the purpose of which is to satisfy public demand for gambling which would otherwise turn to illegal operators.  Thus, in my view, the issue of ‘undue concentration of mahjong parlour’ is clearly tied in with the first factor in the Guidelines, namely, it is a matter of policy that a mahjong parlour should, as a general rule, be allowed to be set up only if a cogent need for such an outlet is established.  On this basis the undesirability of undue concentration of mahjong parlours is easy to understand.  The more mahjong parlours there are in a locality, the more likely will be the occurrence of the negative effects associated with gambling.  This particular factor clearly has a rational and legitimate foundation.

(3)  Undue concentration of mahjong parlours

7.22.The argument now raised by Mr Cooney was the very same argument that had been raised before the Board, namely, the Public Officer was concerned only with the number of mahjong parlours in the locality and had ignored other factors.  Mr Cooney elaborated by saying there is a logical fallacy in the Board’s reasoning in that its holding that there is undue concentration of mahjong parlours begs the question of whether there is undue concentration of mahjong parlours in the locality in the first place. 

7.23.In addressing the issue of the suitability of location the Board had considered the nature of the locality by, first, discounting the relevance of a purely residential area and presence of education and religious institution factors. It then recognized the applicant’s argument that the locality is in an entertainment area and considered the applicant’s argument that it is a weighty factor in deciding whether the premises are suitable for a new mahjong parlour but disagreed with it.  The Board first referred to the underlying compromise of the gambling policy.  It then said at paragraph 21(1)(b) :

‘ Needless to say, there is a wide variety of entertainment activities, which may or may not involve gambling. There are obviously different regulations and policies governing different types of entertainment activity. Whether or not a locality can be described as an “entertainment area” does not indicate whether an additional entertainment activity should be permitted to be carried out within that neighbourhood. Each case must depend on its own facts and circumstances. We note that this Board expressed similar sentiments in Leung Lap v The Public Officer Appointed by the Secretary for Home Affairs (AAB No. 9/2013, 28 January 2014) §23.’ (emphasis added)

7.24.The only complaint that Mr Cooney now has is that the Board did not specifically state its view on the ‘undue concentration of mahjong parlour’.  ‘Undue concentration’ are simple words and one does not need a dictionary to understand them.  As Mr Cooney himself pointed out, ‘undue concentration’ must be assessed by a consideration as to whether the concentration is excessive or disproportionate, given the locality’s nature and the physical relationship of each parlour to the others.  Mr Cooney argued that to determine whether there would be an undue concentration of parlours and to properly apply the Guidelines, the Public Officer and the Board needed to consider other factors such as the nature of the locality, the separation of the parlours from each other and their distribution, e.g., that they were in different streets, out of sight of each other and walking distance but they did not do so.  These matters had been considered in Ng Hon Chiu, Daymond v Commissioner for Television and Entertainment Licensing AAB No. 49/2011, 19 April 2012, paragraph 45.

7.25.I have already referred to the policy objective of why there should not be undue concentration of mahjong parlours.  It is then a simple determination whether there is factually an undue concentration of such parlours.  In my view the argument now advanced by Mr Cooney is making a mountain out of a molehill.  Both the applicant and the Public Officer had submitted plans of the locality before the Board.  The premises are located at a section of Portland Street near the junction with Soy Street (‘the road junciton’).  Parallel to Portland Street is Shanghai Street which is also cut across by Soy Street.  The existing five other mahjong parlours are all located in a 100 metre radius or slightly beyond the edge of this radius in respect of these three streets. The physical distances of these mahjong parlours are readily apparent from the maps themselves.  There are already two parlours on Portland Street.  One is to the right of the premises and other one is to the left of the premises.  Both of these parlours are just one block away from the premises.  Another one (‘the third parlour’) is on Soy Street across the road junction where the premises are located.  There are two other parlours on Shanghai Street.  One is situated not far from the road junction where the premises are located.  The other one is just around the corner from the premises and two blocks away.  Two of the existing parlours are located within the 100 metre radius and three of them are located slightly beyond this radius.  Whilst there is no statutory requirement for a 100 metre radius, this is used as a practical tool to assist the decision maker.  The presence in this small area of six mahjong parlours clearly will be an undue concentration of them.  By agreeing with the Public Officer’s view that there will be ‘undue concentration of mahjong parlours’ in the vicinity, the Board does not need to go further than that. The Judge himself recognized the usefulness of the maps.  This argument does not even come close to a proper judicial review challenge in the first place.

VIII.  Conclusion

8.For these reasons the appeal was dismissed with costs to the Public Officer.

Hon Yuen JA :

9.I agree with the Reasons for Judgment of Cheung JA.

Hon Kwan JA :

10.I agree with the Reasons for Judgment of Cheung JA.

Mr Nicholas Cooney SC, instructed by Edmund W.H. Chow & Co., for the applicant

Mr Jenkin Suen, instructed by Department of Justice, for the interested party

The respondent, acting in person, absent