Read the full judgment text of HCAL 2817/2018 on BabelCite. This Court of First Instance judgment was delivered on 4 March 2020 before Chow J.
Administrative law – judicial review – mahjong/tin kau licence – Gambling Ordinance (Cap 148), s.22 – Brief Policy Guidelines on Issue of Mahjong/Tin Kau Licence – Location Factor, Local Reaction Factor, Relocation Factor – Licence in Force Requirement – Wednesbury unreasonableness – controlled gambling policy. Application for a mahjong/tin kau licence in respect of premises at G/F, 171 Shau Kei Wan Main Street East, Shau Kei Wan, refused by the Public Officer on grounds of close proximity to three educational institutions and strong local objections, refusal upheld by the Administrative Appeals Board on appeal. First issue: whether the Relocation Factor in the Guidelines, requiring the existing licence to be in force at the time of the new application, is Wednesbury unreasonable in excluding applicants forced to relocate through no fault of their own who have persistently sought alternative premises – held not Wednesbury unreasonable, as the imposition of a temporal requirement is rational and the drawing of a bright line, though arbitrary in places, falls within the permissible range of a reasonable decision-maker, and the controlled gambling policy is not 'business facilitating'. Second issue: whether the Board was Wednesbury unreasonable in dismissing the Applicant's Undertakings (blocking shop front, no advertising signs, sound proofing/business hours/security compliance) as ineffective under the Location Factor – held not unreasonable, as the Board was entitled to take a commonsense view that the parlour still required means of promotion and signage, and that business hours overlapping with schooling hours left policy concerns of protecting children and youths unaddressed. Third issue: whether the Board took into account irrelevant considerations in assessing the Local Reaction Factor by considering objections not based on opposition to gambling itself, and/or unlawfully fettered its power to remit the case to the Public Officer – held not so, as the Guidelines do not distinguish between types of objections, and it is primarily for the Board to decide what weight to give the consultation evidence, with no application for remittal having been made. Outcome: judicial review application dismissed with costs to the 2nd Putative Respondent.
Legal issues: Whether the Relocation Factor in the Guidelines is Wednesbury unreasonable · Whether the Board's dismissal of the Undertakings as ineffective under the Location Factor was Wednesbury unreasonable · Whether the Board took into account irrelevant considerations in assessing the Local Reaction Factor or unlawfully fettered its power to remit the case
Outcome: Application for leave to apply for judicial review dismissed; all three grounds rejected. Costs awarded to the 2nd Putative Respondent, to be taxed if not agreed.
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