Wong Sheun Ling v. Administrative Appeals Board and Another

CACV 67/2020

[2022] HKCA 542

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 67 OF 2020

(ON APPEAL FROM HCAL 2817 OF 2018)

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Before:  Hon Poon CJHC, Kwan VP and Au JA in Court

Date of Hearing:  16 November 2021

Date of Judgment: 20 April 2022

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

A.  INTRODUCTION

1.This is the applicant’s appeal against the judgment of Chow J (as he then was) (“the Judge”) dated 4 March 2020 ([2020] HKCFI 323) (“the Judgment”), whereby the Judge dismissed her application for leave to apply for judicial review following a rolled-up hearing on 29 August 2019.

2.The applicant’s intended application for judicial review was against:

(1)  the decision of the Administrative Appeals Board (“the Board”) on 21 September 2018 (“the Decision”) to uphold the decision of the Public Officer (“the Public Officer”) appointed by the Secretary for Home Affairs (“the Secretary”) dated 25 September 2017 refusing the applicant’s application for a mahjong/tin kau licence (“MJTK Licence”) in respect of the premises at G/F, 171 Shau Kei Wan Main Street East, Hong Kong (“the Premises”); and

(2)  the policy of the Secretary for the grant of MJTK Licence as contained in a document titled “Brief Policy Guidelines on Issue of Mahjong/Tin Kau Licence” (“the Guidelines”).

3.We heard the appeal on 16 November 2021.  At the end of the hearing, we reserved our judgment to be handed down. This is what we do now.

B.  BACKGROUND

4.The background facts of the present appeal have been comprehensively summarised by the Judge at [2] ‑ [12] of the Judgment.  It suffices to highlight the following for the purpose of this appeal.

5.In Hong Kong, pursuant to section 3(1) of the Gambling Ordinance, Cap 148 (“the Ordinance”), gambling is unlawful unless authorised or exempted under sections 3(2) ‑ (8) of the Ordinance.

6.Pursuant to section 3(6) of the Ordinance, gaming is lawful if (a) the game is one in which mahjong or tin kau tiles are used; and (b) it is played in premises licensed for the purpose under section 22.  Under section 22(1)(b) of the Ordinance, the Public Officer appointed by the Secretary may license premises for the playing therein of games in which mahjong or tin kau tiles are used. Such licence may on payment of the prescribed fee be granted or renewed for a period of 12 months under section 22(2)(b) of the Ordinance.

7.The Secretary has published the Guidelines embodying his policy for issuing MJTK Licences.  Under “Points for consideration before the issue of a Mahjong/Tin Kau Licence” of paragraph 2 of the Guidelines, each application will be considered on its own merits and the Public Officer will consider six major factors namely:

(1)  Cogent need for a lawful gambling outlet;

(2)  Suitability of the applicant;

(3)  Suitability of the proposed premises;

(4)  Suitability of the proposed location (“the Location Factor”);

(5)  Local reaction (“the Local Reaction Factor”); and

(6)  Sympathetic consideration for a “relocation” case (“the Relocation Factor”).

8.In particular, under the Relocation Factor, it is the policy that sympathetic treatment in relocation cases will only be given where the new MJTK Licence is sought during the currency of the existing licence (“the Licence in Force Requirement”).[1]

9.In the present case, the applicant applied for a MJTK Licence in respect of the Premises on 23 December 2015 (“the Application”).  As set out at paragraph 44 of her Form 86, it is the applicant’s case that this was her 4^th attempt to “relocate” the business to a new premises:[2]

(1)  The applicant through a company called Wing Hing Mahjong Game Company (“Wing Hing”) had previously operated a mahjong parlour at Nan On Lane in Shau Kei Wan from 1994 to 2005. The business had to close in 2005 because the premises were repossessed for redevelopment.[3]

(2)  In 2008, Wing Hing was able to find premises at 299, Shau Kei Wan Road to resume operation, but within months had to cease operation again due to repossession.[4]

(3)  The applicant later applied for an MJTK licence in respect of certain premises in North Point in 2009, which was refused.

(4)  In 2015, there was yet another application for a MJTK Licence for in the premises at 279, Shau Kei Wan Road, but the application was also refused in February 2015.[5]

10.The fact thus is that the applicant’s last MJTK Licence expired in June 2008. 

11.On 28 April 2017, the Public Officer informed her that he was minded to refuse the Application and invited her to make representations.  On 17 May 2017, the Public Officer further provided the applicant’s solicitors with a summary of the local consultations conducted by the relevant District Officer to assess the local reaction to the establishment of the proposed mahjong parlour.  On 13 June 2017, the applicant through her solicitors wrote to the Public Officer making representations in relation to the intended refusal of the Application.

12.On 25 September 2017, the Public Officer gave notice to the applicant that the Application was refused on two grounds (“the Public Officer’s Decision”), namely:

(1)  the proposed location was not suitable for the establishment of a mahjong/tin kau parlour due to its close proximity to three educational institutions; and

(2)  there were strong local objections to the Application.

13.On 13 October 2017, the applicant lodged an appeal against the Public Officer’s Decision to the Board. In the appeal, in seeking to meet the Public Officer’s concerns about the Premises’ close proximity to educational institutions, the applicant offered three undertakings (“the Undertakings”)[6]. They were in summary (a) blocking the front of the Premises facing Shau Kei Wan Main Street East so that the premises were only accessible from a quieter laneway, (b) not to put up any advertising signs along Shau Kei Wan Main Street East, and (c) soundproofing, operating hour limits, and security to control admission to the Premises.

14.After hearing the parties on 11 May 2018, the Board dismissed the applicant’s appeal on 21 September 2018.

C.  THE JUDGMENT

15.On 10 December 2018, the applicant applied for leave to apply for judicial review.  In her Form 86, she advanced three grounds in support of her application:

(1)  The Relocation Factor with the Licence in Force Requirement in the Guidelines was Wednesbury unreasonable in excluding a “relocation” case where, even though an applicant did not have a licence at the time of the application, the applicant was forced to relocate through no fault of his/her own and had been persisting energetically and with reasonable promptness in finding alternative premises to relocate.

(2)  The Board failed to take into account relevant considerations, took into account irrelevant considerations and/or was otherwise Wednesbury unreasonable in dismissing the Undertakings as ineffective in alleviating the policy concerns of protection of children and youths from the bad influence of gambling under the Location Factor in the Guidelines.

(3)  The Board took into account irrelevant considerations in assessing the Local Reaction Factor and/or unlawfully fettered its power to remit the case to the Public Officer for reconsideration on that issue.

16.After the rolled-up hearing on 29 August 2019, the Judge refused to grant leave to apply for judicial review to the applicant.  In particular, the Judge observed:

(1)  The imposition of a temporal requirement between the previous operation of a mahjong parlour in the immediate neighbourhood of the proposed premises and the current application for a new MJTK Licence before sympathetic consideration was given to an application was rational and reasonable.  The Secretary’s decision to draw a bright line in fixing the actual temporal requirement namely, the Licence in Force Requirement, fell within the permissible range which a reasonable decision maker might choose and could not be said to be Wednesbury unreasonable: see the Judgment at [27];

(2)  Although the Relocation Factor was listed at paragraph 2 of the Guidelines as one of the six major factors, the overriding principle remained that each application would be considered on its own merits.  As the Board took into account the historical circumstances of the applicant’s case and gave “some weight” to them, the Board’s approach could not be faulted: see the Judgment at [31];

(3)  The Government’s overall controlled gambling policy was not intended to be “business facilitating”.  As such, it would be wrong to focus excessively on the harshness of the application of the Relocation Factor on an applicant in considering the rationality of the Relocation Factor: see the Judgment at [32];

(4)  In relation to the applicant’s argument that the Licence in Force Requirement “failed to treat like situations alike”, the Judge considered that whenever a bright line was drawn for the purpose of determining qualification for some benefit, it was inevitable that different treatment would be accorded to a person falling on one side of the line and another falling on the other side of the line, even though their factual circumstances might be close or similar to each other.  Such consideration did not make it impermissible to draw the line in the first place: see the Judgment at [33];

(5)  It mattered little whether the Board took into account the Undertakings as part and parcel of its consideration of the Location Factor, or considered them as mitigating measures against the adverse effect of close proximity between the proposed mahjong parlour and the three educational institutions.  It would be wrong for the court to technically and artificially dissect the Board’s thinking process.  Having regard to the Board’s view as to the ineffectiveness of the proposed measures, the Board would inevitably come to the same and correct conclusion that the proposed parlour was in close proximity to the education institutions.  Ultimately, assessment of the effectiveness of the Undertakings was a matter for the Board and its conclusion was far from being Wednesbury unreasonable: see the Judgment at [38] ‑ [39];

(6)  There was no valid basis to seek to draw a distinction between (i) objections to the establishment of a proposed parlour arising from opposition to gambling, and (ii) objections arising from other concerns, for the purpose of assessment of the Local Reaction Factor: see the Judgment at [44];

(7)  It was primarily a matter for the Board to decide, notwithstanding the limitation of the local consultations carried out by the relevant District Officer, whether to accept the findings of the consultations and the weight to be given to those findings.  The Judge did not consider that the Board had acted irrationally in deciding to assess the Location Reaction Factor on the basis of the evidence, material and information before it: see the Judgement at [46].

D.  THIS APPEAL

D1.    Grounds of Appeal

17.By the Notice of Appeal filed on 17 March 2020 (“the NOA”), the applicant appealed against the Judgment.  In the NOA, the applicant raised two grounds of appeal, namely:

(1)  The Licence in Force Requirement in the Relocation Factor in the Guidelines, and accordingly the Decision taken on the basis of the Guidelines, were Wednesbury unreasonable (“Ground 1”); and

(2)  The Board’s dismissal of the Undertakings as ineffective was Wednesbury unreasonable (“Ground 2”).

18.By way of a letter dated 5 May 2021, the Board indicated a neutral stance and did not appear before this Court for the present appeal.

D2.    Ground 1: Whether the Licence in Force Requirement and the Decision were Wednesbury unreasonable

19.Under this ground, the applicant’s submissions are threefold:

(1)  First, Mr Parker (with Mr Yeung) argued before us, as Mr Philip Dykes SC (leading Mr Yeung) for the applicant did before the Judge, the Licence in Force Requirement was irrational as it failed to treat like cases alike.  Counsel relied heavily on Leung Kam Yung Ivy v Commissioner for Television and Entertainment Licensing & Anor [2001] 2 HKC 555, and submitted that the Judge erred in distinguishing it from the present case.

(2)  Second, Mr Parker submitted that as the decision maker was already required to apply a multifactorial test, weighing various potentially opposing factors in the balance, there was no administrative need, or justification, for a rigid rule about which prior licence holders should be entitled to sympathy.  The Secretary had not offered any rational basis drawing “an exclusionary bright line”, precluding sympathetic consideration as a major factor, upon the expiration of the licence – no matter how recent and no matter what had been done since.

(3)  Third, Mr Parker submitted that the Judge failed to consider that despite the Board having given “some weight” to the applicant’s relocation history, the Licence in Force Requirement precluded the consideration of the applicant’s case as benefitting from one of the major factors and thus arbitrarily reduced the weight that could be and was given to the applicant’s relocation history.

20.We respectfully disagree with Mr Parker.  We will deal with each of his arguments in turn.

21.First, Mr Parker’s reliance on Leung Kam Yung Ivy is misplaced.  As correctly noted by the Judge, the requirements for “sympathetic consideration” for relocation cases under the policy in 1990[7] was different from the current policy.  Under the 1990 Policy, the licensee had to “relocate his premises at no fault of his own” but no such requirement is present in the Relocation Factor under the Guidelines.

22.More importantly, the Licence in Force Requirement was not present under the 1990 Policy.  There was no express temporal requirement in relation to “sympathetic consideration” under the 1990 Policy.  In this respect, under the 1990 Policy, the then Commissioner had wider flexibility in determining how long the element of “relocation” could hold good based on individual circumstances.

23.It was under this context that Seagroatt J made the observation at p.566C-E:

“As far as the effluxion of time is concerned it must be a factor in deciding for how long an application can be regarded as a relocation for the purposes of sympathetic consideration. But account must be taken of the time and expense involved in finding suitable premises and having them assessed by the various authorities. If there is a substantial delay between making applications so as to suggest a lack of serious endeavour, that would be a weighty favour in deciding for how long the element of ‘relocation’ could hold good. This applicant has made three applications. I find it difficult to conclude that she has not persisted energetically and with reasonable promptness to find alternative premises on each occasion and it would be harsh to say that such ‘sympathetic consideration’ should evaporate in these circumstances. It is not without significance that the Commissioner (CTEL) in his memorandum to the Secretary for Home Affairs thought that she was still entitled to it.”

24.We agree with the Judge that Seagroatt J’s observation should not be read as a statement of law that an application should necessarily be given some sympathetic consideration in a relocation case if the applicant had persisted energetically and with reasonable promptness to find alternative premises.

25.Mr Parker submitted that the facts of the present case “bear a striking resemblance to” that of Leung Kam Yung Ivy.  This is not correct.  To put matters into perspective, the applicant in Leung Kam Yung Ivy ceased her operation of MJTK parlour in late 1994 as the lease of her old premises was not renewed by her landlord. She made three applications to apply for a MJTK Licence within five years, the last one (which was the subject matter of that judicial review application) being in 1999.  Her application was refused by the then Commissioner on the grounds of (a) absence of “cogent need”, and (b) “undue concentration of mahjong or tin kau parlours in the district”, and the refusal of which was upheld by the Board on the absence of “cogent need” ground only.

26.As stated at [9] above, the present application, being the applicant’s 4^th attempt to relocate the original MJTK parlour, was made in December 2015, well over seven years since her MJTK parlour ceased operation in Shau Kei Wan in 2007 and Wing Hing’s last licence expired in 2008.  This is a material factual difference between the present case and Leung Kam Yung Ivy.  As such, even taking Mr Parker’s case at its highest, when one considers the issue on “effluxion of time”, we are not persuaded that the present case “bear a striking resemblance to” that of Leung Kam Yung Ivy.

27.More importantly, the Board did take into account and gave some weight to the applicant’s historical circumstances when considering her application even when she did not satisfy the Relocation Factor under the Guidelines: see [49] of the Decision.

28.Given the factual differences and the difference in requirements as to sympathetic consideration for relocation cases between the 1990 Policy and the Guidelines, Leung Kam Yung Ivy simply does not assist the applicant.  The Board’s approach and the Judge’s analysis cannot be faulted.

29.Equally, there is no merit in the applicant’s complaint that the Judge erred in considering it was reasonable for the Secretary to draw “a bright line” in fixing the temporal requirement, namely the Licence in Force Requirement, under the policy.  To better understand this, one must consider the gambling policy in its proper context.

30.As a start, it is pertinent and not disputed that the existing gambling policy adopts a compromise approach and is a restrictive and regulated regime which is not intended to be business-facilitating.  According to the undisputed evidence filed on behalf of the Secretary:

“The existing gambling policy, under the jurisdiction of the Home Affairs Bureau (‘HAB’), is to restrict gambling opportunities to a limited number of authorised and regulated outlets. The rationale is two-fold. First, whilst HAB recognises that there is always a demand for gambling, the conduct of gambling activities should be authorised and regulated. This is because unregulated gambling activities can lead to a number of social problems, e.g. frauds, underage gambling, loan sharking, etc. 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 outsets, the purpose of which is to satisfy substantial and persistent public demand for gambling which would otherwise turn into illegal operators. The regulatory regime for gambling activities is therefore not intended to be business-facilitating.”[8]

31.As noted by Cheung JA in Lai Wai Hung Cesario v Administrative Appeals Board & Anor (unreported, CACV 250/2015, 27 May 2016) at [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.”

32.In this respect, the Secretary further gave the following explanation in relation to the Licence in Force Requirement:

“An application may be considered with some degree of sympathy if the applicant fulfils certain requirements, including the Licence in Force Requirement. The Licence in Force Requirement helps ensure that generally sympathetic consideration would not be given to an application for MJ/TK licence if the applicant has already ceased operating the MJ/TK parlour within the immediate neighbourhood, which makes its application no different from a fresh application as there is no MJ/TK parlour operated by the same applicant in the immediate neighbourhood at the time of application. The Licence in Force Requirement under the Relocation Factor helps differentiate a ‘relocation’ case from other fresh application. In this connection, there is a need to impose the Licence in Force Requirement under the Relocation Factor.”[9] (Emphasis added)

33.In our view, given the clear policy intent of restricting gambling, it must be reasonably open for the Secretary to set a temporal requirement (in addition to other relevant criteria) as to when applications “may be considered with some degree of sympathy”.  In this connection, we agree with the Judge that it must be reasonably open for the Secretary to adopt a policy to accord to an application some degree of sympathy if the licensee has, up to the time of the application, been operating a mahjong parlour in the immediate neighbourhood of the proposed premises when compared with a fresh, new application or an applicant whose operation in a nearby location had already ceased.

34.For an applicant holding an existing MJTK Licence, which is only valid for 12 months, who applies to relocate to an immediate neighbourhood without adding any gaming tables, as a matter of logic and common sense, one can reasonably expect that there will be less valid local objection as the factors and circumstances under consideration will likely remain unchanged from those which had previously been considered by the authority in approving the existing MJTK Licence not too long ago.  In the circumstances, given that the existing MJTK Licence is one which has already been approved relatively recently, it is reasonably open for the Secretary to draw a bright line and decide as a matter of policy that a relocating application in which the applicant still holds an existing MJTK Licence should attract more sympathetic consideration than a new, fresh application.  An application for licence by an applicant whose previous MJTK Licence has already expired is thus similar in nature and in substance to a fresh application.

35.In any event, it certainly cannot be said that the inclusion of the Licence in Force Requirement in the policy is one which no reasonable person in the position of the Secretary would have done.

36.Further, the fact remains that each application would be considered on its own merits.  Even when an application is given “some degree of sympathetic consideration” under the Relocation Factor, this alone will not override all other factors.  Rather, the other factors will continue to apply as stated in the Guidelines.

37.Thus, where an applicant only has an expired MJTK Licence, it remains open for the decision maker to take into account the applicant’s historical circumstances when deciding whether to grant a new licence.  As correctly noted by the Judge, the Guidelines do not preclude altogether any sympathetic consideration being given to a “relocation” case where the situation merits.[10]  In this sense, we are of the view that the approach and policy adopted by the Secretary is far from being Wednesbury unreasonable.

38.In the present case, although the applicant’s historical circumstances failed to satisfy the Relocation Factor, as rightly noted by the Judge, they had been correctly considered and assessed by the Board and accorded some weight.

39.Accordingly, we agree with the Judge that the Board’s approach cannot be faulted.

40.Mr Parker’s last submission on this ground can be easily disposed of.  In effect, the applicant was contending that, given the Licence in Force Requirement in the Relocation Factor, the Board was effectively “precluded from elevating the relocation history to major factor status” because of the structure of the Guidelines.

41.To put it in another way, Mr Parker’s submissions effectively boiled down to one of weight – that more weight and more sympathetic consideration should be accorded to the applicant’s historical circumstances and attempts on relocation when deciding on her application whether to issue MJTK Licence.

42.It is well established that it is entirely for the decision maker to attribute to the relevant considerations such weight as he thinks fit, and the court will not interfere unless he has acted unreasonably in the Wednesbury sense: see Chan Kam Choi v Commissioner of Correctional Services [2016] 4 HKLRD 565 at [28] and Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, p.764G-H.

43.As this Court has repeatedly emphasised, judicial review is not an ordinary civil action, and the court would not take over the function of the public authority for no reason.  The function of the court in judicial review is to consider whether the decision of the public authority or body on a matter of public administration contravenes the principles of public law or not: Chan Shui Wah v Appeal Panel (Housing) & Anor [2020] 3 HKLRD 178 at [14], citing Kwok Lo Ping v Electoral Registration Officer (unreported, CACV 31/2017, 17 May 2017) at [16].

44.Viewed in this light, it is not appropriate for the court to usurp the power given to the Secretary to formulate and administer policy. Still less should the court usurp the roles of the Public Officer and the Board in balancing and weighing the multi-facet considerations in granting the MJTK Licences.

45.The weight to be accorded to the applicant’s historical circumstances is entirely a matter within the Board’s discretion.  The Board had already taken into account the applicant’s relocation history and accorded suitable weight to it even if it considered that the applicant’s relocation history did not satisfy the Relocation Factor.  In doing so, we agree with the Judge that the Board had correctly considered the applicant’s case on its own merits and its approach and decision was far from being Wednesbury unreasonable.

46.For the above reasons, Ground 1 must fail.

D3.    Ground 2: Whether the Board’s dismissal of the Undertakings as ineffective was Wednesbury unreasonable

47.In support of the Application before the Board, the applicant offered the following undertakings (“the Undertakings”)[11]:

(1)  Erect new concrete block walls in order to block the front of the Premises facing Shau Kei Wan Main Street East.  In other words, the Premises would not be accessible through the shop front on Shau Kei Wan Main Street East.  Customers and staff alike would have to gain entry to the Premises from the rear lane, walking around the corner and entering the rear lane from Kam Wa Street.

(2)  Not to put up any advertising signs along Shau Kei Wan Main Street East, such that the public (not to mention school children) would not even notice the existence of a mahjong parlour whilst walking along Shau Kei Wan Main Street East.

(3)  Comply with the necessary conditions relating to sound proofing (including the installation of sound proofing systems, and the purchase of electrical mahjong tables, which would serve to significantly reduce the level of noise), business hours and means of admission and security.

48.Under this ground, Mr Parker submitted that the Board erred in not taking into account the Undertakings when determining whether the three educational institutions were “in close proximity” to the Premises, and thus, whether the “general rule” under the Location Factor applies[12]; but instead, considered them only when determining whether an exception should be made to this “general rule”.

49.Mr Parker then submitted that the Judge was wrong in considering that Ground 2 involved “technically and artificially dissect[ing] the thinking process of the Board” and the Judge did not identify the basis for his confidence that the Board would “inevitably” have concluded that all three educational institutions were in close proximity had the Undertakings been taken into account as part and parcel of the Board’s consideration of the Location Factor.  Mr Parker further submitted that there was no evidence the applicant intended to promote what on any view was a small business.

50.We agree with Mr Liu for the 2^nd putative respondent that Mr Parker’s submissions are largely a re-run of the same arguments submitted before and rejected by the Judge.  This Court has repeatedly emphasised that an appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong, see Ng Shek Wai v Independent Commission against Corruption [2019] 2 HKLRD 586 at [21] and United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39].

51.In any event, we find no merit in Mr Parker’s submissions.

52.We agree with Mr Liu and the Judge that it will be wrong to artificially dissect the thinking process of the Board.  In making its decision, the Board had applied Li Wai Hung Cesario v Administrative Appeals Board [2015] 5 HKLRD 575 and had considered the distance as well as the accessibility and geography between the Premises and the educational institutions in its assessment of “close proximity”[13]. Whether the Board took into account the Undertakings as part and parcel of its consideration of the Location Factor, or considered them as mitigating measures against the adverse effect of close proximity between the Premises and the three educational institutions, as correctly noted by the Judge, matters little.  In any event, the approach adopted by the Board cannot be said to be so unreasonable that no reasonable decision maker would have done so.

53.More importantly, we agree with the Judge that ultimately, the assessment of the effectiveness of the Undertakings was a matter for the Board and the Court should not usurp the Board’s role when there was no Wednesbury unreasonableness in reaching its decision.

54.In this connection, the Board’s consideration as to the effectiveness of the Undertakings was well-reasoned.  We agree with the Judge that it was open for the Board to come to a common-sense and reasonable view that “the proposed mahjong parlour still requires some means of promotion for the business to commence and maintain viability and that some form of signage is still required to enable customers to find the entrance to the mahjong parlour”.[14] It was equally open for the Board to take the reasonable view and consider that based on the evidence, “the strong policy concerns of protection of children and youths from the bad influence of gambling as they wander and explore the neighbourhood, which underlies the ‘general rule’ above, remain applicable and adverse to [the applicant’s] case”.[15]  The approach taken by the Board as well as its decision were far from being Wednesbury unreasonable.

55.Accordingly, Ground 2 must also fail. 

E.  CONCLUSION

56.For the reasons given above, we dismiss the appeal.

57.There being no reason why costs should not follow the event, we further order the applicant to pay the 2^nd putative respondent’s costs of this appeal, to be taxed if not agreed, with certificate for two counsel.

Mr Timothy Parker and Mr Geoffrey Yeung, instructed by Bobby Tse & Co, for the applicant

Mr William Liu, Deputy Law Officer (Civil Law)(Ag), and Ms Liesl Lai SGC (Ag), for the 2^nd putative respondent