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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BETWEEN

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D E C I S I O N

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Hon Cheung JA (giving Decision of the Court) :

1.This is the applicant’s application for leave to appeal to the Court of Final Appeal against our judgment of 27 May 2016.

2.Section 22(1) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) requires the applicant to show that the appeal involves a question which, by reason of great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

3.The applicant has not identified any such question in his Notice of Motion.  Instead he relies on a draft notice of appeal which set out three grounds of appeal :

‘ l. The Court of Appeal erred in refusing to grant the Applicant’s application for a licence under section 22(1)(b) of the Gambling Ordinance (Cap. 148) to operate a mahjong parlour on the premises:-

(1) The Court of Appeal 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.

(2)  The Court of Appeal 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.

(3) The Court of Appeal 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.’

4.These three grounds of appeal are matters that this Court had already addressed in our Reasons for Judgment. They are plainly fact sensitive issues and the applicant has not identified any question pertaining to be of great general or public importance in these three grounds, or that leave should otherwise be granted.

5.In the applicant’s written submission filed in support of his application, he relies on three new matters which can be summarized as follows :

1)  The inclusion of experience, knowledge or understanding of a person as a condition of issuance of licence for mahjong parlour is ultra vires;

2)  The rationale of ‘undue concentration’ is due to noise nuisance and such rationale no longer exists today; and

3)  The Board erred in concluding that there was ‘undue concentration’, without taking into account the locality and giving reasons or proper definition.

6.The first ground is a new ground which had never been raised before in the applicant’s Form 86 or at the hearing before Zervos J and this Court.  In view of the requirement for leave to commence judicial review, the applicant is plainly not entitled to rely, at this late stage of the proceedings, on this new ground that was not put forward at the leave application.

7.The second ground is likewise a new ground not previously raised before.

8.The third ground is a fact sensitive ground and is not reasonably arguable as a question of great general or public importance or otherwise.

9.The applicant also relies on new evidence in the form of five memos exchanged between government officials in the 1950’s concerning mahjong schools.  These documents were disclosed belatedly for the first time in this application.  No explanation was given why they were not produced beforehand and in our view the applicant is not entitled to rely on them now.  We are not prepared to go into the merits concerning the relevance of these documents.

10.Accordingly, the application is refused with costs to the Interested Party.

Written Submissions by the applicant, acting in person

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

The respondent, acting in person, providing no written submission