Martnok Thanradee v. Commissioner of Police and Another

HCA 789/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 789 OF 2011

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BETWEEN

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REASONS FOR DECISION (NO 3)

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1.Judgment in this action was handed down on 14 July 2016 (“Judgment”). These Reasons for Decision (No 3) should be read together with the Judgment. For easy reference, I shall adopt the abbreviations in the Judgment.

2.WSIP Ng explained that MESU KCDIV took action (ie interviewed P for the ME Statement on 8 May 2006 and MESU KCDIV conducted background and criminal record check on P) when the Board notified the police by memo of P’s application for transfer (to her) and amendment of Chan’s Licence in respect of the Premises, but she was unsure whether MESU KCDIV received a copy of the Application Form before P was interviewed on 8 May 2006. Although WSIP Ng would require sufficient information to make recommendations to the Board on P’s application, she said did not need to see P’s personal particulars submitted to the Board, and she did not pay attention to the Pub’s proposed opening hours.

3.On 5 August 2014, after P had closed her case and in the course of Mr Leung’s cross-examination of WSIP Ng, he orally applied for discovery of the memo from the Board to the police that enclosed the Application Form on the ground it was open on WSIP Ng’s evidence that the police might have received notice of P’s application for transfer and amendment of Chan’s Licence either quite soon or quite some time after the copy Application Form was received by the Board on 13 April 2006. Mr Leung submitted it was relevant to establish when the police first became aware of P’s application to the Board for transfer of Chan’s Licence to P (since Ds argued that in view of such pending application the police exercised discretion not to take any enforcement action against Chan for his absence from the Premises during licence checks). At the trial, I refused such discovery application with reasons and decision on costs reserved.

4.In my view, there is no merit to the application since the Ds already admitted in paragraph 12(b)(1) of the Re-Amended Defence that the Board notified the police of P’s application for transfer of the Licence in respect of the Premises on 19 April 2006, ie just a few days after the Board received the Application Form on 13 April 2006. As explained in paragraph 59 of the Judgment, Chan was present at the Premises or had day-off during most of the licence checks in March/April 2006. But by 8 May 2006, the police took the ME Statement from P for the purpose of P’s application to the Board. P herself confirmed that after 1 March 2006 she told the police officers who visited the Premises on licence checks that she was new owner, and indeed this so stated in the Visit Record dated 8 June 2006.  In any event, Ds did not seek to deny the copy Application Form was still in the Pub Police File at the time when the police carried out licence check on 15 November 2006 and laid information for the Supervision Summons, and when counsel on fiat prosecuted the Supervision Trial.

5.In the circumstances, I dismissed P’s application at the hearing on 5 August 2014, and I now grant a costs order nisi that costs of the application be paid by P to Ds with legal aid taxation of P’s own costs. For convenience, I apportion hearing time of 35 minutes (being 10:15 am – 10:50 am on 5 August 2014) for such application.

Mr Kelvin Leung, instructed by Li, Kwok & Law, for the plaintiff

Mr Edward Shum, instructed by Department of Justice, for the 1^st and 2^nd defendants