Chan Fai v. Television and Entertatnment Licensing Authority

CACV000069/1989

IN THE SUPREME COURT OF HONG KONG

COURT OF APPEAL

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BETWEEN

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Coram: Hon Hunter JA in Chambers

Date of Hearing: 28 June 1989

Date of Delivery: 28 June 1989

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J U D G M E N T

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Hunter, JA :

1. The applicant and present appellant, Chan Fai, has been the licensee of a public dance hall at No 91 Sai Yee Street, 2nd Floor, Kowloon for some seventeen years. On 20th December 1988 the licensing authority declined to renew that licence. He obtained leave judicially to review that decision, with the result that on 21st December Hooper J made an order directing that authority to renew his licence pending the determination of his application. The application came before O'Connor J on 20th February, and he handed down his judgment on 14th April dismissing the application on the merits. Accordingly the compulsorily renewed licence thereon terminated.

2. From O'Connor J's decision the applicant now appeals. By this summons he is seeking an interim order

"(1) directing the Television and Entertainment Licensing Authority to renew Public Dance Hall licence until the dtermination of the Appeal herein or until the Court otherwise orders;"

and certain other consequential relief.

3. Now the principles upon which the court can and should act in these circumstances have very conveniently be investigated recently in England in two cases. The first is R v Secretary of State for the Home Department ex parte Herbage [1987] 1 QB 872 and the second is R v the Licensing Authority Established under Medicines Act 1968 ex parte Smith Kline & French Laboratories Ltd (No 2) [1989] 2 WLR 378 in the Court of Appeal and at p 397 in the same volume in the House of Lords. Two things emerge from those decisions.

4. The first is that the court has jurisdiction to grant interim relief to applicants or appellants for judicial review under O 53 r 3(10)(b) even as against the Crown and persons standing in the position of the Crown. This was first held by Hodgson J in Herbage. His judgment in that respect was specifically approved by the majority of the Court of Appeal in Smith Kline. The interesting part of that case was that the application there related to relief between the Court of Appeal and the House of Lords, so it exactly mirrors this situation. So it can be seen that the Court has jurisdiction to grant the relief sought.

5. Secondly, both cases dealt with the circumstances in which that jurisdiction should be exercised. Hodgson J in Herbage at p 887 pointed out that the authorities on private law inter partes civil proceeding were very unhelpful. But it was clear he had to consider the apparent strengths and weaknesses of the two opposing cases. He then went on went on

"It seems to me also to be clear that it would be only in very exceptional circumstances the court would grant interim mandatory relief in respect of the administrative functions of officers of the Crown".

Of course it is interim mandatory relief which is sought here.

6. Similar views were expressed in Smith Kline. In the Court of Appeal Woolf LJ at p 395 says this:

"I also bear in mind that the licensing authority is performing a statutory duty. It is a duty which it is required to perform and the court, in my view, should be hesitant, granting relief which interferes, even on an interim basis, with the performance by the statutory authority of this role".

In the House of Lords Lord Templeman gave the only speech, all the other law lords agreeing with him. At p 411 he says this :

"In my opinion the licensing authority should not be deterred from exercising its rights and powers so as to ensure public safety and to ensure fairness to all applicants whether or not they resort to campaigns and litigation. The courts should be reluctant to criticise the practices of the licensing authority or to grant injunctions or orders or declarations against the licensing authority which is endeavouring reasonably and conscientiously to discharge the onerous duties imposed by Parliament and is acting in good faith".

7. I accept that there are substantial differences between the functions of the licensing authority established under the Medicine Act 1968 and those of the licensing authority here. But basically the general principle which I think that both the Court of Appeal and the House of Lords were adopting, was one which had already be mentioned by Lord Scarman in R v Inland Revenue Commissioners ex parte Rossminster [ 1980] AC 953 at p 1027 namely that the courts should be very hesitant in interfering with the activities of statutory bodies established to perform statutory functions. I direct myself in accordance with those principles.

8. The first question which seems to me to arise is this : Has this applicant shown substantial grounds of appeal? Are there real prospects of the decision of O'Connor J being reversed? Doing the best that I can with the grounds of appeal and having read his very careful decision, it seems to me that the, answer to that is "no". The point which was most strenuously argued before me is a point of ultra vires, which is not surprising because it is a simple point of law, and it can be considered quite apart from the exercise by the judge of any question of discretion. Without going into the matter in any detail I can only say that J am wholly unimpressed by the strength of that point.

9. The second question is more unusual and arises from the applicant's post refusal conduct. One of the grounds relied upon for the refusal of the licence was that the applicant had been convicted, on his own plea of guilty, on 25th November, of employing an assistant at the dance hall without the approval of the licensing authority. That assistant was a night watchman. No question was raised before O'Connor J as to the validity of that conviction or of that plea of guilty. It was sought to be said that this was an oversight and related only to one employee.   Words to that effect are repeated in one of the paragraphs in the Notice of Appeal.

10. In the light of more recent events a very different attitude has had to be taken by this applicant. Very soon after Hooper J's order, he was seen, on a visit on 26th January, to be employing at the dance hall seven persons, six dancing partners and a musician, he says, without the approval of the licensing authority. On 7th April he pleaded guilty to this offence. That was very shortly before O'Connor J's decision was given. Unfortunately, and very surprisingly having regard to his assertion that since these events happened he has been taking a personal interest in the running of the business, there have been no less than four subsequent occasions, when visits have been paid to the dance hall, and it was discovered that persons were being employed there who were not approved. On 15th February there were six female dancing partners. That was just before the hearing before O'Connor J. On 24th February, four days after the hearing, there were fifteen such girls. On 17th March there were nine. On 29th March there were seven. I am told that there is no question but that those facts are correct. The only issue which remains to be considered when these matters eventually come before the magistrate, (this has been delayed) is whether or not these persons are "assistants" within the meaning of the Regulations; a point which has not heretofore been taken by the applicant or by his former legal advisors.

11. There are three relevant regulations. Regulation 60

"Every person licensed to keep a public dance hall shall employ in the premises only such assistants as the licensing authority may approve".

Regulation 61 :

"Every person licensed to keep a public dance hall shall keep a register at the premises and shall correctly enter therein the names, age, sex nationality, birthplace and place of residence n the Colony of every dancing partner and other person employed in the premises and shall affix thereto a photograph of every such dancing partner and employee''.

That regulation plainly covers all employees. Then there is a rquirement under regulation 62 to give a return monthly of all employees.

12. The question is whether regulation 60 when it uses the word "assistants'' means all employees or only those employed in a supervisorty role which is the argument addressed to me by Mr Sanguinetti. Prima facie "assistant" means someone who helps. Someone who is present and helps is the natural meaning. At the present moment I am very unimpressed by the suggestion that "assistant" in regulation 60 does encompass exactly the same people as are covered by 61 and 62; namely all those who are employed in the premises to assist, in the language of section 4 of the Ordinace, in "the conduct of the trade or business," of a dance hall. I am aware that I am not sitting in judgment upon those matters, and that I should, strictly speaking, be considering the likelihood of that defence succeeding. I cannot separate that in my mind from my own impressions the defence, which are not very happy.

13. This seems to me to be a very improtant matter. Since the refusal the applicant has pleaded guilty to a more serious offence, than the one which was already before the licensing authority, in relation to the employment of an unapproved assistant. I do not embark upon any comparison of seriousness with the earlier offence, when four employees were convicted of being involved in a vice establishment. It is more serious than the one which the licensing authority had regard to. Since then the matter has got a great deal worse. It would be a very grave matter for this court to direct the authority to re-grant a licence to a person, even on an interim basis who, if my view on construction is right, has committed a string of breaches of the regulations. The whole basis of the authority's refusal to renewal, it was put upon regulation 7(1)(b) and (d) and most clearly to me on (d), was that the premises "have been or are being improperly conducted." I do not think it can be right in these circumstances to impose this applicant upon the licensing authority.

14. For those reasons I do think this is a proper case for the grant of the interim relief sought and the application must be dismissed.

Representation:

Mr A J J Sanguinetti (Ip & Willis) for Applicant/Appellant

Mr Whaley for Crown/Respondent