Re Mr Tse Cho

HCMP000091/1979

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Coram: Full Bench (McMullin & Leonard, JJ.)

Date of Judgment: 30 April 1979

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JUDGMENT

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McMullin, J. :

1. The applicant is the holder of a licence granted by the Commissioner of Television and Entertainment Licensing Authority under the Miscellaneous Licences Ordinance Cap. 114 in respect of a dance hall at No. 227, Nathan Road, Kowloon. The licence was issued to him on the 26th of November 1968. It was issued subject to certain conditions which appear endorsed upon the back. Among these conditions is one [Condition (a)] in the following terms :

"except with the written permission of the licensing authority endorsed on the licence, the licensee shall not -

In the subsequent years up to 1979 this licence was renewed each year. On the 14th February 1979 Mr. TSE Cho, the licensee received a letter from the Licensing Authority which reads as follows :

It is conceded that the applicant did not appeal under regulation 8 to the Governor in Council against this decision. On the 26th of February he was granted leave to apply for orders of certiorari and prohibition. At the hearing before the Full Bench Mr. Sanguinetti, of counsel, appeared on behalf of the applicant and Mr. Tristram Crown Counsel for the respondent.

2. Because Mr. Sanguinetti's primary point upon this application has been that the record of the act of the Licensing Authority discloses upon its face an error in law we acceded to his contention that we should not look at any affidavit evidence (See Rex v. Northumberland Compensation Appeal Tribunal Ex Parte Shaw⁽¹⁾ per Denning L.J. at page 352).

The argument did range wider than that touching on the questions of excess of jurisdiction and the alleged breach of a fundamental rule of natural justice in that the licence was revoked without the applicant being afforded an opportunity of being heard in explanation, or in extenuation, of the circumstances, whatever they might be, which had prompted the authority to revoke the licence. Although affidavit material would be admissible, and would normally be admitted and consulted, where an application is based upon either of the latter two grounds no difficulty has been put in the way of the Pench by this absence of evidence since the complaint of excess of jurisdiction derives from the argument supporting the contention that error is shown upon the face of the record; as to "audi alteram partem" it is not contended by the respondent that the applicant was afforded any opportunity of being heard before the licence was revoked.

3. The record for the purpose of the present proceedings consists of the letter from the Television & Entertainment Licensing Authority which has been set out above. That discloses quite clearly the reason for the revocation. The Licensing Authority declares, in effect, that it is in possession of evidence which satisfies it that the applicant is not "in control" of the business of the dance hall and the subsequent reference to the provisions of regulation 78(1) make it clear that the authority has come to the conclusion as a result of that evidence that the licensee has transferred, lent or hired his licence to some other person. The power under which the authority purported to act is that contained in regulation 7(2) which reads as follows :

"Upon any breach of the Ordinance or any regulation or condition of a licence the licensing authority may in his discretion peremptorily revoke the licence, whereupon the same shall forthwith cease to be valid."

Mr. Sanguinetti's point is that, granted that there was some evidence available to the authority to show that the licensee had not been running the ballroom or in control of it, that did not in itself constitute any proof that the licensee had transferred, lent or hired his licence; furthermore that nothing in the Ordinance or regulations forbids delegation of control. Counsel points out that, to the contrary, condition (b) endorsed upon the licence itself indicates that it is envisaged that the licensee may employ a person to assist in the running of the business. Continuous personal supervision by the licensee of the dance hall is not amongst the provisions either of the licence or of the legislation.

4. There is no doubt that, at any rate since the decision in Rex v. Northumberland Compensation Appeal Tribunal Ex Parte Shaw⁽¹⁾ certiorari will issue upon the showing of error of law upon the face of the record whether or not a question as to jurisdiction is raised. That is true not only in respect of errors of law appearing upon the record of proceedings before inferior tribunals of a wholly judicial character such as Justices of the Peace but also in respect of tribunals of an administrative nature. The Northumberland Case itself concerned such a tribunal. The tribunal in that case had misconstrued some complicated regulations relating to compensation and it was conceded by counsel for the tribunal that they had made an error of law. For my own part I have some difficulty in construing what is manifest upon the face of the record here as constituting an error in law. There may well have been an error as to fact. The Licensing Authority considered that it had facts sufficient to prove to its satisfaction that there had been a transfer of the licence. The fact, if it be a fact, that the dance hall did not appear any longer to be in the control of the applicant but to be under the control of some other person may not be conclusive evidence that he had transferred, hired or lent his licence to that person but it can scarcely be said not to amount to some prima facie evidence that that was so. Are we then entitled to say that such a finding of fact (assuming it be true) constitutes an error in law when it is interpreted as sufficient proof of a breach of the conditions of the licence and of the regulations? In Baldwin & Francis Ltd. v. Patents Appeal Tribunal and Others⁽²⁾ an application for certiorari proceeded upon the basis that the finding of an appeal tribunal disclosed an error in law in that, in reversing the order of the Superintending Examiner who had found a substantial risk of infringement of patent, the appellate tribunal, in its finding, made no reference to the only one of four alternative possibilities of infringement which had been found to be established by the Examiner and, without mentioning that possibility, had considered principally one of the alternative possibilities. Of the five judges in the House of Lords who heard the case on appeal from the Court of Appeal only Lord Denning M.R. found himself able to discern error of law upon the face of the record. He came to that conclusion because he considered that it disclosed that the decision of the tribunal had been based on "extraneous considerations which it ought not to have taken into account" and also a failure "to take into account a vital consideration which it ought to have taken into account ..." In the present case it is Mr. Sanguinetti's contention that the reference to lack of control by the applicant constitutes a resort to such "extraneous considerations" as moved the learned Master of the Rolls to find error in law in the case of Baldwin & Francis Ltd.⁽²⁾. In considering whether there had been a breach of the conditions of the licence or of the provisions of the legislation evidence tending to show that the applicant no longer had any active connection with the ballroom so far from being a consideration extraneous to the question of breach was, one would think one of the primary questions of fact to be weighed by the authority. In the case of Rex v. Nat Bell Liquors Ltd.⁽³⁾ the Privy Council, on appeal from the Supreme Court of Canada and the Supreme Court of Alberta, held that a conviction by a magistrate for a non-indictable offence cannot be quashed on certiorari on the ground that the depositions showed that there was no evidence to support the conviction or that the magistrate misdirected himself in considering the evidence. It was also held that absence of evidence did not affect the jurisdiction of the magistrate to try the charge. At page 144 Lord Sumner says :

"On certiorari, so far as the presence or absence of evidence becomes material, the question can at most be whether any evidence at all was given on the essential point referred to. Its weight is entirely for the inferior Court :

said Lord Kenyon in Rex v. Smith,

So far as I can ascertain that case remains good law. The Nat Bell Case⁽³⁾ concerned the proceedings of a magisterial tribunal but so far as the narrow question of sufficiency of evidence is concerned I do not see any reason to make a distinction between such a tribunal and a tribunal or authority of an administrative nature. Certainly, no case has been cited to us to suggest that certiorari will issue against an administrative tribunal on the grounds of error as to fact where the fact decided does not directly involve the question of the tribunal's own jurisdiction. Indeed in most cases, and certainly in the present case, it is difficult to see how a factual finding apparent upon the face of the record could be said to be in error without the inspection of affidavits or the taking of evidence in some other form in order to test the truth or falsity of the finding. The record in the present case is constituted by the letter to which I have referred and it is patent that the complaint upon which the authority based its action, as shown in that letter, consists of the allegation that the licensee has transferred, lent or hired his licence. That he has done some such thing is either true or false and it is impossible for the court upon the hearing of the application to decide such a fact without the consideration of further evidence. We have expressly precluded ourselves from doing so at the instance of counsel for the applicant and without demur from the other side. I would prefer to say therefore that, however dubious the conclusion may be from evidence showing lack of control that finding does not in itself constitute such error of law upon the face of the record as would entitle the applicant to the grant of the order. So finding, I am relieved of the necessity of considering the question, recently much debated, as to whether an error of law may also be said, in any given case, to amount to an exceeding of jurisdiction. Even if, however, contrary to what has been said, the record in this case does disclose upon its face an error in law I would prefer not to consider that question in the light of any suggested consequential lack of jurisdiction but to consider rather whether any error is apparent which is of such a fundamental character that the decision of the Authority must be said to amount to a nullity. On that question, indeed, I am drawn to the approach of Lord Reid in Anisminic Ltd. v. Foreign Compensation Commission & Others⁽⁴⁾ an authority greatly relied upon by Mr. Sanguinetti in the present case. It is an approach which is equally valid whether or not the record can be said to disclose error in law. The learned judge at page 171 of the report says as follows :

"It has sometimes been said that it is only where a tribunal acts without jurisdiction that its decision is nullity. But in such cases the word 'jurisdiction' has been used in a very wide sense, and I have come to the conclusion that it is better not to use the term except in the narrow and original sense of the tribunal being entitled to enter on the inquiry in question. But there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the require-ments of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take in account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly."

I note also that, the same learned judge succinctly stated the sole and simple reason, underlying a formidable complication of fact and law, why the judges of the House of Lords felt obliged to upset the decision of the Court of Appeal. At page 174 he says :

"The question I have to consider is not whether they" (i.e. the Compensation Commission) "made a wrong decision but whether they inquired into and decided a matter which they had no right to consider."

Leaving aside the question of jurisdiction in the broader sense that leaves for consideration only the question whether the Licensing Authority fell short in its performance of the third of the requirements listed in the first passage cited above from the judgment of Lord Reid in failing to comply with any of the requirements of natural justice. If this court is entitled to review the act of the authority upon this application and if, upon such review, a breach of natural justice is disclosed then I have no doubt that the applicant is entitled to his order on the basis that the proceedings of the authority were a nullity.

5. In answer to all of this Mr. Tristram for the Crown takes what I might call the high line. This, he says, was an administrative act by a body which is not obliged to act judicially or quasi-judicially and considerations as to natural justice should therefore not be applied to it. Alternatively, if there is such a duty and the rules of natural justice come in they have, he says, been excluded by the language of the Ordinance and the regulations. For the first of these propositions he relies upon the decision in Nakkuda Ali v. M.F. De S. Javaratne⁽⁵⁾. In that case the Controller of Textiles in Ceylon purported to revoke a textile licence under a regulation which was in the following terms :

"62. Where the Controller has reasonable grounds to believe that any dealer is unfit to be allowed to continue as a dealer, the Controller may cancel a textile licence or textile licences issued to that dealer."

Since, in that case, the Judicial Committee upheld the decision of the Supreme Court in Ceylon in discharging the rule nisi and did so on the basis that the act was of an administrative nature and should not therefore be called in question by reference to the rules of natural justice, it might at first sight seem that the present case, given the stronger wording of its regulations (to which I will come presently), stands upon a still better footing for such treatment. But much has happened in this area since the decision in Nakkuda Ali and many watchful jurisprudents in the highest judicial circles have been on the lookout for attempts to insulate administrative powers within a sheath of legislative provision which will be impervious to the probe of all prerogative orders. For one thing the status of the decision in Nakkuda is not beyond doubt. In Ridge v. Baldwin⁽⁶⁾ a case in which the requirements of natural justice were widely canvassed, Lord Reid seems to have taken the view that a duty to act judicially may be inferred from the very nature of the power given by the legislation. This he took to be the view of Atkin L.J. in Rex v. Electricity Commissioners Ex Parte London Electricity Joint Committee Company⁽⁷⁾ Lord Atkin at page 205 had formulated the proposition, which has often been resorted to since, in the following words :

"Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs."

Lord Reid then referred to the "gloss" which he perceived as having been applied to this proposition by Lord Hewart C.J. in Rex v. Legislative Committee of the Church Assembly Ex Parte Havnes-Smith⁽⁸⁾. That gloss was to the effect that the body in question must not only be shown to have legal authority to determine questions affecting the rights of subjects but that there must also be "superadded to that characteristic the further characteristic that the body has the duty to act judicially". That had been the approach of the Judicial Committee in Nakkuda Ali's Case⁽⁵⁾ and since Lord Reid was of the opinion that the words of Lord Atkin were not to be so interpreted he thought that the Board had been in error. He said :

"So I am forced to the conclusion that this part of the judgment in Nakkuda's Case was given under a serious misapprehension of the effect of the older authorities and therefore cannot be regarded as authoritative."

On the other hand Lord Evershed who dissented from the majority in Ridge v. Baldwin⁽⁶⁾ did not believe that the Privy Council had been in error in Nakkuda Ali. None of the other judges expressed an opinion on the case one way or the other. In Regina v. Gaming Board Ex Parte Benaim⁽⁹⁾ at page 430 Lord Denning M.R. says as follows :

"At one time it was said that the principles" (i.e. of natural justice) "do not apply to the grant or revocation of licences. That too is wrong. Reg. v. Metropolitan Police Commissioner, Ex Parte Parker (1953) 1 W.L.R. 1150 and Nakkuda Ali v. Javaratne (1951) A.C. 66 are no longer authority for any such proposition."

Although, as Mr. Tristram says, this court is strictly bound only by decisions of the Privy Council one may be forgiven a certain hesitation, in face of such weighty opinions, to assume that Nakkuda remains an unclouded authority in an area where so much has happened in the 28 years since it was decided. Mr. Tristram, indeed, perceives a division in opinion between the Privy Council and the House of Lords on this question of the obligation to act judicially. He asks us to reject the idea that the obligation to act judicially can be derived merely from the nature of the power given by the legislation and in this regard he referred us to the decision of the Privy Council in Vidvodava University Council v. Silva⁽¹⁰⁾. In that case Lord Morris of Borth-y-Gest in delivering the opinion of the Board says at page 88:

"It was submitted on behalf of the respondent, firstly, that if someone has the power to determine what the rights of an individual are to be then a duty to act judicially arises simply from the nature of the power and secondly, that where the power is a power to dismiss from an office (and it was contended that the respondent could be said to be the holder of an office) and to dismiss not at discretion but by reason of misconduct, then there is a duty to act judicially. In their Lordships' opinion the first of these submissions is too wide and cannot be accepted."

It is significant, however, that the applicant in that case was refused the right to challenge his dismissal from a university (by means of certiorari and mandamus) on the ground that his relationship with the university was by virtue of an ordinary contract of master and servant and it was said that the procedures which he had invoked were not available to challenge a summary termination of such a contract. In coming to that conclusion Lord Morris adverted also to the possibility that there might be other persons who were officers of the university and who occupied a special position which would take them out of the category of employed servants. In a passage which appears between Letters E and F on page 90 the learned judge appears to accept that the university council (which was the body under challenge in that case) would have a duty to act judicially in exercising its power of dismissal in relation to any such hypothetical persons. In other words, to hark back to the third of the several propositions put forward by Lord Reid at page 171 in the report of the Anisminic Case⁽⁴⁾, where the dismissal of such a person was contemplated on grounds of his misconduct there would be a duty to act judicially. Where, as in the present case, the challenged authority is given power under its legislation to consider whether or not a licensee had been guilty of misconduct amounting to an offence punishable by fine I cannot see that such authority is any the less under an obligation to deal with the matter judicially and to afford the suspect licensee an opportunity for answering what, in effect, amounts, in the authority's opinion, to a prima facie case of illegal disposal of the benefit of his licence.

6. But in any event, as Mr. Sanguinetti points out, the most recent decisions have taken this whole matter somewhat beyond the confines of such considerations as are involved exclusively with the idea of judicial or non-judicial performance. In re H.K. (an infant)⁽¹¹⁾ certiorari was granted to quash the decision of the Chief Immigration Officer at London Airport in refusing admissi on to an infant on the ground that the decision had been based on inadequate evidence and that the infant had not been given an opportunity of presenting evidence to establish his age to the satisfaction of the authorities. On the facts before the court the order was refused as also was an application for habeas corpus. The reason for that was that it was said that on the facts before the Immigration Officer he had dealt with the immigrant fairly within the powers available to him and that the immigrant minor and his father had been given ample opportunity of satisfying the Immigration Authority as to the minor's age. Further evidence which might have been favourable to the minor's case had come to light on the day following the decision of the Immigration Authority. In dismissing the applications the court said that the order made by the Immigration Officer was unimpeachable upon the state of facts as he had known them upon the date of making the order but it was suggested that that order if challengeable at all might have been challenged on application for a writ of mandamus. The interest of the case for present purposes, however, is to be found in a passage in the judgment of Lord Parker C.J. at page 630. It is the same passage upon which I relied in In re J.L. Mitchell & Others⁽¹²⁾. The circumstances of that case were wholly different but the principles stated by Lord Parker are equally relevant to the case of the present applicant. The learned judge having said that he doubted whether the Immigration Officer should be regarded as acting in a judicial or quasi-judicial capacity went on to say, in effect, that nevertheless it was incumbent upon the Immigration Officer to give the immigrant on opportunity of satisfying him as to the matters contained in the relevant subsection. He continues :

"That is not, as I see it, a question of acting or being required to act judicially, but of being required to act fairly. Good administration and an honest or bona fide decision must, as it seems to me, require not merely impartiality, nor merely bringing one's mind to bear on the problem, but acting fairly; and to the limited extent that the circumstances of any particular case allow, and within the legislative framework under which the administrator is working, only to that limited extent do the so-called rules of natural justice apply, which in a case such as this is merely a duty to act fairly."

Lord Parker then went on to consider the judgment of Lord Radcliffe in Nakkuda Ali⁽⁵⁾ in particular a passage in which the latter had said :

"Nor did the procedure adopted fail to give the appellant the essentials that justice would require, assuming the respondent to have been under a duty to act judicially."

Lord Parker comments on that saying (page 631) :

"That might be understood as saying that if there was no duty to act judicially, then it would be impossible to interfere, even if the applicant had not been given the essentials that justice requires. I very much doubt, however, whether it was intended to say any more than that there is no duty to invoke judicial process unless there is a duty to act judicially. I do not understand him to be saying that if there is no duty to act judicially, then there is no duty even to be fair."

In re H.K.⁽¹¹⁾ has been applied in a number of later cases and in particular the dictum of Lord Parker which I have quoted above which was endorsed in R. v. Gaming Board for Great Britain Ex Parte Benaim and Khaida⁽⁹⁾. A case which comes much closer to the circumstances with which we are here concerned is R. v. Barnsley Metropolitan Borough Council Ex Parte Hook⁽¹³⁾ a case which is of additional interest in that the opinion of Lord Denning M.R. in R. v. Gaming Board for Great Britain Ex Parte Benaim⁽⁹⁾ that the Board in that case had a duty act fairly is approved by Scarman L.J. although he distinguishes the case before him on the facts. The applicant for certiorari in Barnsley's Case had been the holder of a licence which permitted him to trade from a stall in a market place. He had done so for six years without complaint. But then he had been observed on one occasion urinating in a side street near the market after the market and its public lavatories had been closed for the day and a complaint was made about this to the market manager who reported to the Amenities & Services Committee of the local authority. The committee decided to ban him from trading in the market and to revoke his right to a stall. This decision was communicated to him and he was given an opportunity to put his case before a sub-committee. The applicant and his representatives were not given particulars of any charge or of the evidence supporting it and at the meeting of the sub-committee the Market Manager was present throughout and was able to give his views of the evidence to the sub-committee. The applicant was heard by the sub-committee and then in his absence his case was discussed in the presence of the manager. The sub-committee adhered to the original decision of the committee. The applicant applied to the Divisional Court for and order of certiorari on the grounds that the sub-committee had failed to comply with the rules of natural justice in dealing with the matter. The court dismissed his application on the ground that the decision was a purely administrative one. He appealed to the Court of Appeal which reversed the decision of the Dvisional Court. At page 456 Lord Denning M.R. having recited the substance of certain of the by-laws governing the behaviour of persons within the market deals with the substance of the appeal in this way :

"Such being the legal position, I do not think that the right of a stallholder arises merely under a contract or licence determinable at will. It is a right conferred on him by the common law under which, so long as he pays the stallage, he is entitled to have his stall there; and that right cannot be determined without just cause. I agree that he has to have the permission of the market-holder to start with. But once he has it and has set up his stall there, then so long as he pays the stallage, he has a right to keep it there. It is not to be taken away except for just cause and then only in accordance with the provisions of natural justice. I do not mind whether the market-holder is exercising a judicial or an administrative function. A stallholder counts on this right in order to enable him to earn his living. It is not to be taken away except for just cause and in accord with natural justice."

The fact that the applicant in that case was asserting what was in effect a common law right makes no difference whatsoever to the general principle. Scarman L.J. makes it clear that that right is subject to considerable statutory regulation and that a trader or any member of the public can only acquire the right to trade in a market if he can obtain a licence which is within the power of the local authority, under its legislation, to grant or to withhold. It is also within its power to revoke it. Although, therefore, in the present case we are dealing with a wholly statutory right the applicants in the two cases stand upon identical grounds so far as their right to natural justice is concerned. These several authorities, as it seems to me, provide a clear indication that the older test of "judicial act versus administrative act" while it may not wholly have retired from the arena is in process of giving way before an altogether more general principle which might be described as Lord Morris of Borth-y-Gest describes it in Furnell v. Whangarei High Schools Board⁽¹⁴⁾ where at page 679 he says :

"Natural justice is but fairness writ large and juridically. It has been described as 'fair play in action'. Nor is it a leaven to be associated only with judicial or quasi-judicial occasions."

Whichever view one takes of the rule I think it is apparent that Mr. Tristram's first point must fail.

7. That leaves only the proposition that there are indications in the legislation itself which are sufficient to exclude the jurisdiction of the court. If the principles suggested by Lord Denning in his vigorous essay in creative jurisprudence entitled "The Discipline Of The Law" are embraced at their furthest reach this is at best a pious hope which, as the modern authorities advance upon us, seems likely to become increasingly a forlorn hope as well. We are not here directly concerned with the more remarkable examples given in the text of judicial tenacity in the face of express provisions in Acts of Parliament designed positively to oust the jurisdiction of the courts and to render administrative or other acts impervious to the prerogative writs. A very strong example of the latter type of case is to be found in Pearlman v. Keepers & Governors of Harrow School⁽¹⁵⁾ in which the basic point at issue was whether or not the installation of the heating system in a house amounted to a structural alteration. If it was a county court judge was empowered to regard it as an improvement within the meaning of a certain schedule to the Housing Act 1974 and to make an adjustment in favour of the tenant in respect of the rateable value of his house. In one such case a county court judge had held that the installation of such a heating system did amount to a structural alteration and in a later case (Pearlman) another county court judge held that such a system was not a structural alteration. There was a provision in the Housing Act which made any such determination by a county court judge "final and conclusive" and, although the County Courts Act of 1959 had abolished certiorari for an error of law on the face of the record as a means of attacking a judgment or order of the county court, two out of the three judges in the Court of Appeal (Lord Denning M.R. and Eveleigh L.J.) were able to find that this factual conclusion of the judge at first instance amounted to an error in law and was moreover an error which had resulted in his depriving himself of jurisdiction to deal with the question set before him. He was said to have answered the wrong question in deciding what Parliament had meant in the Act by the words "structural alteration" and was consequently depriving himself of jurisdiction to deal the question before him viz. whether such a structural alteration was an improvement which entitled the tenant to an adjustment in his rates. This, it was said, constituted an error in law which had rendered his conclusion a nullity so that the High Court was entitled to intervene upon a motion for certiorari to quash. All three of the judges in that case were agreed that although the question before the county court judge was a factual question yet since the words "structural alteration" were contained in an Act of Parliament the question of what they meant was a question of law. It was said that the county court judge had answered that question wrongly and thus wrongfully deprived himself of jurisdiction. It was the latter feature of the situation which in the opinion of the appellate court would empower the High Court to intervene. The nice extremity to which the much debated question has now extended as to what constitutes an error depriving of jurisdiction and what does not is well illustrated in the division of opinion which appears upon the judgments in the case of Pearlman⁽¹⁵⁾. Thus at page 743 the Master of the Rolls says, in relation to the powers of a county court judge :

"If he makes a wrong finding on which his jurisdiction depends, he makes a jurisdictional error; and certiorari will lie to quash his decision: see Anisminic Ltd. v. Foreign Compensation Commission (1969) 2 A.C. 147, 208, per Lord Wilberforce. But the distinction between an error which entails absence of jurisdiction - and an error made within the jurisdiction - is very fine. So fine indeed that it is rapidly being eroded."

In his dissenting judgment Geoffrey Lane L.J. said : (page 750)

"The judge is considering the words in the Schedule which he ought to consider. He is not embarking on some unauthorised or extraneous or irrelevant exercise. All he has done is to come to what appears to this court to be a wrong conclusion upon a difficult question. It seems to me that, if this judge is acting outside his jurisdiction, so then is every judge who comes to a wrong decision on a point of law."

For present purposes I am content to accept the decision in Pearlman⁽¹⁵⁾ - and I refer to it only for this purpose - as a strong, perhaps an extreme example of the reluctance of the English courts to accept a total exclusion of the power of the High Court to inspect proceedings of lower tribunals whether administrative or judicial even in the face of legislative provisions which seem expressly designed for that purpose.

8. In the present case Mr. Tristram seeks to extract an irresistible inference from the wording of the regulations that the Legislature intended to make this particular administrative act exempt from all further inquiry by any body, authority, tribunal or court whatsoever other than as proceeded in regulation 8. He relies upon the distinction which is patent upon a reading of the provisions of Paragraph 2 of regulation 7 over against the wording of Paragraph 3. Those paragraphs are in the following terms :

Firstly, Mr. Tristram says it is to be noted that the power given to the Licensing Authority is to revoke the licence "peremptorily" in cases where a breach of the Ordinance or regulations etc. is discovered; secondly he points out that it is only in the cases coming under Paragraph 3 that notice must be given to the licensee of an intention to revoke his licence. I think Mr. Tristram was quite right to interpret these factors as an indication that the rule-making authority did not envisage a licensee as entitled to claim a hearing of any kind prior to the revocation of his licence under Paragraph 2 of regulation 7. I did not however understand counsel to argue that these provisions gave any wider power to the Licensing Authority than the power conferred upon him by sub-section 2 of section 5 of the parent Ordinance which is in the following terms :

No power is given by the Ordinance to extend by subsidiary legislation the powers specifically conferred upon the Authority by section 5. In order to save the regulations from the imputation of being ultra vires in this respect I must interpret the powers given by regulation 7 as limited in scope by what appears in subsection 2 of section 5. Before the Authority can revoke it must be satisfied that the licensee has been guilty of an offence under the Ordinance (the question of "other misconduct" does not arise in the present case.) What, then, is the effect on a "peremptory" power of revocation of the obligation to be "satisfied" as to the relevant breach? Whatever the answer to that question may be it is certain that the use of the word "peremptory" in the regulation cannot create a power more absolute than that which is conferred by the Ordinance. The question which concerns us, then, is whether the words of section 5, subsection 2, create a wholly unfettered discretion in the Authority to revoke on being satisfied as to the occurrence of a breach of the Ordinance or regulations.

9. Now this situation, as it seems to me, is precisely covered by authority which although not debated in the hearing before us was drawn to our attention by Mr. Sanguinetti shortly before we rose. It is authority referred to in the same work of Lord Denning which has been mentioned earlier and it occurs in a section dealing with phrases in Acts of Parliament such as the words "if the minister is satisfied" and cognate expressions. One particular case which the learned Master of the Rolls there discusses is the case of Education Secretary v. Tameside B.C.⁽¹⁶⁾. In that case the power of the Secretary for Education to order an education authority to turn grammar schools into comprehensive schools turned upon the question of his being "satisfied" that the local authority was acting "unreasonably". The Secretary of State applied for an order of mandamus ordering the authority to comply with the direction made by him under section 68 of the Education Act in 1954. The direction of the Secretary of State had been made on the basis that he was satisfied that the authority was going to act unreasonably. Mandamus was granted by the Divisional Court. The authority appealed to the Court of Appeal which quashed the order of mandamus. This was done on the ground that the materials before the Secretary of State were insufficient to justify the conclusion that the authority was proposing to act unreasonably. The decision of the Court of Appeal was upheld on further appeal to the House of Lords. The passage which is relevant for present purposes, however, is to be found in the judgment of the Master of the Rolls in the Court of Appeal and it appears at page 1025 of the report. Having dealt with the regulations in which the words "satisfied" and "unreasonable" appeared Lord Denning went on to say :

"Much depends on the matter about which the Secretary of State has to be satisfied. If he is to be satisfied on a matter of opinion, that is one thing. But if he has to be satisfied that someone has been guilty of some discreditable or unworthy or unreasonable conduct, that is another. To my mind, if a statute gives a minister power to take drastic action if he is 'satisfied' that a local authority has acted or is proposing to act improperly or unreasonably, then the minister should obey all the elementary rules of fairness before he finds that the local authority is guilty or before he takes drastic action overruling them. He should give the party affected notice of the charge of impropriety or unreasonableness and a fair opportunity of dealing with it."

To my mind, this clear statement of principle must apply with redoubled force in a case in which the relevant authority has expressed itself satisfied not merely as to the existence of unreasonable conduct but as to the occurrence of conduct which constitutes a breach of the Ordinance so grave that, if it be substantiated, it may result in the exclusion of the licensee from a privilege of a very valuable king which exclusion might in some circumstances (though I cannot say that such is the case here) amount to the destruction of the licensee's livelihood. There is also a further consideration in favour of entering upon the decision of the authority in the present case and inspecting it. Had this been an application to quash the decision of a magistrate and had we been confronted with a charge framed along the lines of the relevant passages in the letter of the authority which has been set out above I have no doubt that a case could have been made for error of law on the face of the record inasmuch as such a charge could be challenged as bad for duplicity. I have taken the view that such technical considerations should not be applied to a finding of a lay tribunal or authority but that of course affords no relief to such authority from the need to observe natural justice whether it is acting judicially or quasi-judicially or whether it is simply to be considered as a body subject, in its operations, to the more general duty to act fairly. I am sensible of the force of the argument that an error in law is disclosed in that the Licensing Authority has presumed guilt from circumstances amounting to nothing more than a prima facie case of breach of the regulations or of the conditions of the licence. As to this I feel, simply, that, as in the matter of alleged duplicity, the fault in a lay tribunal is more fittingly ascribed to a different area of discourse viz. : the rules of natural justice. The authority here purported to make a final determination of the licensee's rights (subject only to the appeal under regulation 8) and it was thus not such a case as Pearlberg v. Varty⁽¹⁷⁾, on which Mr. Tristram relied, where a prima facie finding was not faulted for being ex parte because it was merely a preliminary determination that a prima facie case of non-payment of tax had been shown and there was ample opportunity for the taxpayer later to challenge the assessments consequently made. Moreover, in Wiseman v. Borneman⁽¹⁸⁾ it was said that even in a case where a preliminary decision is made nevertheless the rules of natural justice will apply if the decision affects parties' rights (per Lord Guest at page 311) and this view was accepted by Lord Hailsham in Pearlberg v. Varty⁽¹⁷⁾.

10. In conclusion I would add that the fact that the regulations afford a right of appeal to the Governor in Council was touched upon, if somewhat lightly, in the course of the argument in relation to the discretionary nature of the order being sought. No doubt it is proper for a court to take heed of the existence of such a right of appeal in determining whether or not to exercise its discretion in favour of the grant - indeed this court has so stated on a former occasion (See Miscellaneous Proceedings No. 336 of 1973). It is common ground that there was no appeal in the present case but on the circumstances disclosed I do not think we would be justified in exercising a discretion against the applicant merely by reason of failure to implement the provisions of regulation 8 of the Regulations. In this connection I find some very apposite observations in the judgment of Megarry J. in Leary v. National Union of Vehicle Builders⁽¹⁹⁾. He is addressing himself to the question (posed by himself at page 718) :

"Can a deficiency of natural justice before a trial tribunal be cured by a sufficiency of natural justice before an appellate tribunal?"

The question at issue was the expulsion of a member from a Trade Union but, mutatis-mutandis, the words of the learned judge are equally apposite to the present case. What he says is as follows :

"If one accepts the contention that a defect of natural justice in the trial body can be cured by the presence of natural justice in the appellate body, this has the result of depriving the member of his right of appeal from the expelling body. If the rules and the law combine to give the member the right to a fair trial and the right of appeal, why should he be told that he ought to be satisfied with an unjust trial and a fair appeal? Even if the appeal is treated as a hearing de novo, the member is being stripped of his right to appeal to another body from the effective decision to expel him. I cannot think that natural justice is satisfied by a process whereby an unfair trial, although not resulting in a valid expulsion, will nevertheless have the effect of depriving the member of his right of appeal when a valid decision to expel him is subsequently made. Such a deprivation would be a powerful result to be achieved by what in law is a mere nullity; and it is no mere triviality that might be justified on the ground that natural justice does not mean perfect justice. As a general rule, at all events, I hold that a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body."

11. For these reasons I think the applicant must have his order.

Representation:

Sanguinetti & Cheng Huan, instructed by (Wong, Hui & Souza) for the applicant.

Tristram, for the respondent.

(1) (1952) 1 K.B. 338

(2) (1959) A.C. 663.

(3) (1922) 2 A.C. 128.

(4) (1969) 2 A.C. 147.

(5) (1951) A.C. 66.

(6) (1964) A.C. 40.

(7) (1924) 1 K.B. 171.

(8) (1928) 1 K.B. 411.

(9) (1970) 2 Q.B.D. 417.

(10) (1965) 1 W.L.R. 77.

(11) (1967) 2 Q.B.D. 617.

(12) (1976) H.K.L.R. 1005 at p. 1016.

(13) (1976) 3 All E.R. 452.

(14) (1973) A.C. 660.

(15) (1978) 3 W.L.R. 736.

(16) (1977) A.C. 1014.

(17) (1972) 2 All E.R. 6.

(18) (1971) A.C. 297.

(19) (1970) 2 All E.R. 713, at p. 720.