Ko Chun Kwei v. The Commissioner for Television and Entertainment Licensing

HCMP001149/1991

1991 MP No. 1149

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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Coram: The Hon. Mr. Justice Mayo in Court

Date of hearing: 26 April 1993

Date of handing down of judgment: 5 May 1993

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J U D G M E N T

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1. The Applicant is seeking to review the decision of the Respondent made on the 19th April 1991 to revoke the licence he held to run an Amusement Games Centre at premises on the 1st floor of Melbourne Plaza, Queen's Road Central.

2. In order to understand this matter fully it is necessary for me to provide some background to the events which occurred.

3. The Independent Commission Against Corruption undertook a lengthy investigation into the activities of a number of members of The Television & Entertainment Licencing Authority. As a result of this a number of criminal charges were laid against members and some of the members have already been convicted of offences.

4. Some members of the public have also been charged in relation to alleged corruption activities involving members of TELA.

5. Indeed the Applicant himself was charged on the 6th March 1991 and the proceedings still remain outstanding.

6. The present application was adjourned to be heard by Liu J. on the 26th February 1992. Shortly before that hearing the Respondent served voluminous affidavit evidence on the Applicant which necessitated a further adjournment.

7. In the evidence detailed particulars were given concerning the corrupt activities which were said to have occurred. On the 3rd March the Applicant applied for a stay of the Judicial Review proceedings pending the determination of the criminal proceedings against him. This application was heard by Nazareth J.A. and Judgment was delivered on the 17th September 1992. Nazareth J.A. refused the application mainly on the ground that the decision to revoke the Applicant's licence was based upon his misconduct and the fact that he had provided false information to TELA. Nazareth J.A. had proceeded upon the basis that the material which had been referred to in the affidavit filed shortly prior to the hearing before Liu J. had no relevance to the issues which would be ventilated in those proceedings.

8. Mr. Whitehead who was representing the Respondent before me confirmed that his client was placing no reliance whatever upon any of the evidence relating to the corrupt activities alleged or now proven to have occurred.

9. This is matter of some importance. It means that the Respondent's decision to revoke the licence was based purely upon the misconduct and deception referred to in the correspondence.

10. This is particularised in TELA's letters of the 25th March 1991 and the 3rd April.

Television and Entertainment Licensing Authority

Our Reference : LR T-2843

Your Reference :

Telephone : 574 3130 Ext. 10

20 March 1991

Mr. KO Chun-kwei, Shop Nos. 120-125 and 136-138, 1/F., Melbourne Plaza, 33 Queen's Road Central, Hong Kong.

Dear Sirs,

Recent site visits have revealed that the centre is now operated at Shop Nos. 118-123 and 136- 138 of the above address. Shop Nos. 124 and 125 no longer belong to the centre while Shop Nos. 118 and 119 are being used as an amusement game centre. It has also been brought to my attention that false information was supplied by you in support of your various applications, including the one for renewal of licence submitted on 31 August 1990.

I take a very serious view of your misconduct in supplying false information to this Authority and conducting an amusement game centre not in accordance with the licence issued to you. In this regard I intend to revoke your licence under Section 5 (2) of the Miscellaneous Licences Ordinance on the ground that you are considered to b unsuitable to hold such licence.

You are invited to make any representations you consider appropriate within fourteen days of this letter. In the absence of a reply after the specified period, I would assume that you do not wish to comment.

Yours faithfully,

Signed

(Harris W.K. KAM)
for Commissioner for Television
and Entertainment Licensing"

"Television and Entertainment
Licensing Authority

Our Reference : (40) in LR T-2843 II

Your Reference :

Telephone : 574 3130 Ext. 10

3 April 1991

Messrs. Peter W.K. Lo & Wong, Solicitors & Notaries, Finance Tower, 23/F., 57-59 Connaught Road Central, Hong Kong.

Dear Sir/Madam,

Amusement Game Centre Licence Shop Nos. 120-125 and 136-138, 1/F., Melbourne Plaza, Queen's Road Central, Hong Kong

I refer to your letter of 26 March 1991.

As requested, I attach herewith a photocopy of the application for renewal of licence dated 31 August 1990 submitted by Mr. KO Chun-kwei, enclosing therewith a layout plan bearing his signature. Although the address given on the application form and the layout plan is Shop Nos. 120- 125 and 136-138, 1/F., Melbourne Plaza, Queen's Road Central, Hong Kong, the actual area shown on the layout plan is in fact Shop Nos. 118-123 and 136-138 of the above address as confirmed by our recent site visits. This has led us to believe that your client had supplied us with false information in support of his application for renewal of licence apart from not conducting the centre in accordance with the licence issued to him.

As regards your proposed liaison with the ICAC and the Attorney General's Chambers, I do not think I am in a position to make any comments.

Finally, your request to extend the period for submitting representation is agreed and you are requested to provide me with the representation within ten days from the date of this letter.

Yours faithfully,

Signed

(Harris W.K. KAM)

for Commissioner for Television
and Entertainment Licensing"

11. The facts leading up to the matters referred to were as follows.

12. On the 19th May 1990 the Applicant applied to TELA to increase the number of machines he could operate at the premises.

13. With the application he submitted a layout plan of part of the 1st floor of Melbourne Plaza. Although shop numbers were not included in this layout plan it was clear that the area depicted on the plan was different to the area of the previous layout plan which had been submitted to TELA.

14. The configuration or shape of the area was different. Also perhaps most significantly the area was different. The area on the former plan was 205.86 sq. metres and on the new plan 279.72 sq. metres.

15. However, it is common ground that the description of the area was incorrect. On both plans the area is described as being "Shop 120-125 and 136-138 1/F Melbourne Plaza."

16. The area depicted on the second layout plan excluded shop spaces 124 and 125 and added shop spaces 118 and 119.

17. The Applicant's application was approved on the 22nd June 1990 and on the 16th August he obtained a Tenancy of Shop Spaces 118 and 119.

18. On the 31st August 1990 the Applicant applied for a renewal of his licence. In support of this he submitted a photostat copy of the second layout plan I have referred to.

19. Mr. Whitehead contended that it must have been known to the Applicant that he had practiced a deception on Television & Entertainment Licencing Authority. He had relinquished some of the space for which he had had a licence and had added the area comprising shop spaces 118 and 119. To emphasise this he referred to the Licence itself which contained particulars of the previous shop numbers and did not include shop numbers 118 and 119.

20. He submitted that it was a matter of crucial importance that the area included in licenced areas should be correctly described so that when premises were inspected to determine their suitability there should be no doubt what the area was. This was imperative if the duties of the Authority were to be satisfactorily discharged.

21. Although neither of the layout plans contains the numbering of the shop spaces it is not difficult to see what area is included. Certainly if anyone from the TELA had attended at the 1st floor of Melbourne Plaza they would encounter no difficulty in determining the area referred to by reference to the layout plans. In my opinion it would have been reasonable for the Applicant to assume that someone at TELA would inspect the premises by reference to the new layout plan.

22. So far as the evidence before me was concerned there was no evidence at all that the Applicant was aware that he had in any way contravened either the terms of his licence or the provisions of the Ordinance including its subsidiary legislation. All there is evidence of is a misdescription of the premises.

23. McMullin and Leonard JJ. considered Section 5(2) at p. 359 of Tse Cho 1979 HKLR 339. McMullin J. had this to say :-

"read with the words of section 5(2)

"On proof to his satisfaction of an offence against this Ordinance or other misconduct by such person."

[the word "misconduct" if it is to have any degree of certainty must, I consider, have reference to some provision of the licence or to the regulations to be made under the Ordinance. I say this notwithstanding the definition in section 2 of the Interpretation Ordinance of "Ordinance" as inclusive of subsidiary legislation]. The words "upon any breach ..." and "on proof to his satisfaction ..." are, as is clear from the disapproval by the Judicial Committee, to which I have already referred, of the approach adopted in Sugathadasa v. Jayasinghe (1958) 59 N.L.R. 457, not conclusive to exclude a duty to act judicially but are "introductory of the matter to be considered". Again any decision by the licensing authority is subject to appeal albeit to the Governor in Council, a body whose decision is subject neither to appeal nor to certiorari by reason of section 64(3) of the Interpretation and General Clauses Ordinance. That subsection, be it noted, expressly preserves the right (if it exists) of persons affected to go by way of certiorari rather than appeal."

24. With respect I consider that the approach he adopted was the correct one and is applicable to the present case.

25. As the Respondent had not in my view on the limited facts I have earlier outlined established that the Applicant had been guilty of any misconduct or been in breach of his licence, I consider that his decision to revoke the licence was ultra vires. I also consider that it was unreasonable in a Wednesbury sense. There were no grounds for him to reach a conclusion that the Applicant was not a suitable person to hold a licence.

26. I accordingly make an order for Certiorari to quash the decisions made respectively on the 20th March and 19th April 1991 as prayed in the Relief Sought. I also make an order nisi that the Applicant is to have his costs.

Representation:

Mr. Warren Chan inst'd by Francis Yim & Co. for Applicant

Mr. Robert Whitehead, on fiat and Miss N.Y. Kwok, S.C.C. inst'd by Attorney General's Chambers for Respondent