Re Sea Dragon Billiard and Snooker Association
Read the full judgment text of HCMP 3645/1990 on BabelCite. This High Court CFI judgment was delivered on 22 October 1990.
1. I have before me two applications for Judicial Review by the Sea Dragon Billiard and Snooker Association.
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HCMP003645/1990 HEADNOTE Judicial Review - Fire Hazard Abatement Notice - S.9 Fire Services Ordinance Cap.95 - whether the use to which the premises have lawfully been put can amount to a fire hazard. Judicial Review-application for billiard establishment licence under public Health & Municipal Services Ordinance Cap.132 - whether applicant had right to be heard - whether he had a legitimate expectation of being heard - whether failure to hear could be cured by statutory review hearing - whether the review hearing was fair - policy - fettering of discretion. M.P. No. 2442 of 1990 IN THE SUPREME COURT OF HONG KONG HIGH COURT MISCELLANEOUS PROCEEDINGS _______________
----------------- M.P. No. 3645 of 1990 IN THE SUPREME COURT OF HONG KONG HIGH COURT MISCELLANEOUS PROCEEDINGS _____________
____________ Coram: Kaplan, J. Dates of Hearing: 10, 11 & 12 December 1990 Date of delivery of Judgment: 22 January 1991 ------------------ JUDGMENT ------------------ 1. I have before me two applications for Judicial Review by the Sea Dragon Billiard and Snooker Association. 2. In MP2442 the Applicant seeks the quashing of a decision of the Public Health Select Committee of the Urban Council made on 10th March 1990 (communicated to the Applicant by letter dated 13th March 1990) refusing the grant of a billiard establishment licence at premises known as 1/F & 2/F, Amoy Industrial Building, 7 Ngau Tau Kok Road, Kowloon ('the premises') I will hereafter refer to this as the "licensing application". 3. The grounds upon which relief is sought are that the Public Health Select Committee of the Urban Council;
4. Leave to apply for Judicial Review was granted by Jones, J. on 13th August 1990. 5. In MP3645, the Applicant seeks the quashing of a direction or requirement of the Director of Fire Services (DFS) made by way of a Fire Hazard Abatement Notice (FHAN) issued and served on the Applicant pursuant to Section 9(1) of the Fire Services Ordinance, Cap. 95 and dated 22nd October 1990. The FHAN applies to the Applicant's premises. I will hereafter refer to these proceedings as the "FHAN proceedings". 6. The grounds upon which relief is sought are that:
7. Leave to apply for Judicial Review was granted by Godfrey, J. on 23rd November 1990. He limited the grounds to those set out above and he further granted a stay of the FHAN provided that the hearing date for the licensing application matter was expedited, it having been fixed for February 1991. Thanks to assistance from those responsible for listing earlier dates were fixed before me and I heard both applications on 10th-12th December 1990. 8. I heard the FHAN proceedings first because Mr. Whitehead indicated that if I was against him it would effectively dispose of the licensing proceedings for reasons which will soon become obvious. Although I heard these proceedings first, I immediately went on to hear the licensing proceedings and due to the difficulties involved, I decided to reserve judgment and give one composite judgment covering both sets of proceedings. 9. I propose to deal with the FHAN proceedings first, but as the facts are common to both proceedings, I will first set out the relevant background. Background to both applications 10. The Applicant carries on the business of a private club or association for the promotion of snooker and billiards. It has carried on such business at the premises since about 6th December 1986 and it has done so without breaking any law applicable to its business. It has approximately 70,000 members. It runs one other such establishment which is duly licensed. The Applicant has hosted world class demonstrations by, inter alia, Mr. Jimmy white and Mr. Steve Davis. At the premises in question, which are on the first and second floors of an industrial building, there are some 68 tables. The evidence shows that no one under 14 or over 60 is entitled to join. The application form for membership refers to an examination but Mr. Whitehead, for the Applicant, was unable to enlighten me as to the nature of this examination. The premises are open 24 hours a day, seven days a week and the Applicant employs 70 employees and its monthly outgoings are approximately $450,000. 11. Prior to the end of 1988, there was no requirement for such an establishment to be licensed. However, by Ordinance 53 of 1988 the Eleventh Schedule to the Public Health and Municipal Services Ordinance, Cap. 132 was amended by deleting 'public billiard saloon' and inserting 'billiard establishment'. The latter phrase is defined in Section 3 as meaning:-
12. The Third Schedule designates the Urban Council as the authority for the purposes of, inter alia, Section 92A. 13. The provisions of Section 92A relating to billiard establishments were not to be enforced until 15th December 1989. 14. On 25th April 1989 the building, which includes the Applicant's premises, was inspected in that Fire Services Department officers visited the ground floor in connection with a licence application made by the occupier thereof. 15. On 24th May 1989 the Applicant applied for a billiard establishment licence. 16. On 25th May the Secretary for the Urban Council (SUC) referred this application to the DFS. He did this because Regulation 5 of the Places of Amusement (Urban Council) Bye-Laws made pursuant to Section 92B, Cap. 132 provides:-
17. On 29th August 1989 SUC wrote to the Applicant stating that the Buildings and Lands Department had made various comments on the proposed layout plans. The first was that the proposal was not structurally satisfactory as the internal staircase between first and second floors was unauthorized. Secondly, that the means of escape arrangement was not satisfactory. Thirdly, the premises are designed for non-domestic (work space) use. This letter then goes on as follows:-
The two appendices were attached. 18. On 5th September 1989, the DFS wrote to SUC stating that he did not support the application. 19. On 30th November 1989, SUC wrote to DFS for clarification of the fire safety grounds of the Objections. 20. Section 92A was due to be enforced as from the 15th December 1989, but due to the backlog of applications a 6-month amnesty was granted to all Applicants. 21. On 3rd June 1990, Mr. Loo of FSD attended a meeting at the Urban Council to discuss both the Applicant's application and that of Pratt Billiard Co. Ltd. 22. On 4th January 1990, DFS wrote to SUC stating his reasons for the objection. The objection was that the running of a billiard establishment was a commercial activity within an industrial building. Such commercial activity would attract 'outsiders' who may be exposed to risks of which they would neither be aware nor prepared to face. The objection went on to state that there is a high risk with regard to factories but this risk can be tolerated by the labour force as both management and labour are aware of the situation. It was said that members of the public would not be so aware of the added risks posed by factories and industrial buildings and that they should not be exposed to them. Further it was said that the factory work force is young and active and fully familiar with the building in which they work. It was feared that if non-industrial users were introduced then members of the public including the old, infirm and children will be introduced into industrial buildings of which they would not familiar. It was stated that the risk of fire in industrial buildings is generally greater than in commercial buildings and fires which do occur in industrial buildings, particularly in factories, are of greater magnitude. The fact that the billiard hall was being run on the 1/F and 2/F floors was not a sufficient answer to the fears expressed by the DFS because he stated that in large fires, particularly involving factories, smoke from a fire can often affect all levels of the building and non-industrial users on lower floors can be affected by a fire on the floor of a factory above. 23. On the 10th March 1990, the delegated member of the Public Health Select Committee refused the Applicant a licence. 24. By letter dated 13th March 1990, the Applicant was informed of the decision refusing the grant of the licence. 25. On 16th March 1990, the Applicant applied for a review of the decision of the Urban Council pursuant to section 125(9), Cap. 132 and for a suspension of the operation of the decision pursuant to Section 125(9)(d). 26. Section 125(9) provides as follows:-
27. On 29th March 1990, SUC informed the Applicant that the operation of the decision to refuse the licence to the Applicant was suspended pending the review. 28. On 10th May 1990, the Public Health Review Sub-committee met to consider the review. The Applicant was present through Mr. YEUNG Sai-wing and Mr. Collins, a solicitor, was also present on behalf of the Applicant. Mr. Collins made certain submissions to which I will have to return in due course. The sub-committee supported the decision of the delegated member. The basis of the objection was that the DFS could not support a commercial use in an industrial building because of the fire risks he thought inherent in that situation. Some of the floors above the Applicant's premises are used for the purposes of plastic factories and he was concerned at what might happen if a fire broke out in one of these factories, bearing in mind the large number of people visiting the Applicant's premises during any 24-hour period. 29. On 6th June 1990, this decision was ratified by the Public Health Select Committee. The Applicant's solicitors were informed of this decision on 11th June 1990. 30. On 4th July 1990, the Principal Legal Officer/Urban Council informed the Applicant that the Director of Public Prosecutions would not prosecute the Applicant for running an establishment without a licence until a judicial review was determined. 31. On 13th August 1990, Jones, J. gave leave to apply for judicial review. 32. On 27th September 1990, DFS inspected the applicant's premises. 33. On 22nd October 1990, DFS issued a FHAN giving the Applicant 30 days in which to comply. 34. On 23rd November 1990 Godfrey, J. gave leave to apply for Judicial Review with regard to the FHAN. He declined to give leave on any grounds which questioned the good faith of the DFS. The Fire Hazard Abatement Notice (FHAN) Statutory Provision 35. Section 9 of the Fire Services Ordinance, Cap. 95 provides, so far as is material, as follows;
36. If the person served with a FHAN fails to comply with it, he shall be guilty of an offence and shall be liable to a fine of $25,000 and there is a further provision for a fine of $2,500 per day while the offence continues (Section 9(2)). 37. Section 9(5) provides that a FHAN may be an abatement order "that is to say, an order which requires a person to comply with all or any of the requirements of a fire hazard abatement notice in connexion with which the order is made, or otherwise to abate the fire hazard or to do what may be necessary to prevent the recurrence of the fire hazard within the period specified in the order". It may also be a prohibition order "that is to say an order which prohibits the recurrence of the fire hazard". It may also be a combination of both such forms of an order. 38. 'Fire hazard' is defined in Section 2 as meaning; "(a)-(b) (deleted)
39. Section 9(7A) of the ordinance deals with a 'closing order' made by a magistrate. It provides as follows;
40. The fine for not complying with a closing order is $50,000 and $5,000 for each day the offence continues. 41. Having set out the statutory provisions applicable, it is now necessary to maze clear that the fire hazard relied upon by the DFS is the very use to which these premises have been put by the Applicant. It is not suggested that there is anything 'in or on' the premises which constitute a fire hazard, save the commercial use to which the premises have been put. The point was put felicitously by Godfrey, J. in his judgment granting leave when he said that the fire risk alleged was not on the premises themselves out allegedly arose 'because of the propinquity of the premises to other premises in which industrial uses are carried on involving highly inflammable material..." 42. The next significant matter to note is that although the FHAN requires the Applicant within 30 days to abate the fire hazard, it is common ground that the only way in which this can be done is for him to cease business at the premises altogether. 43. It is necessary to see what the FHAN actually says before deciding whether this notice is within the terms of Section 9 which the Applicant submits it is not. The relevant part provides as follows;
[I should add that the use of the premises as a billiard establishment does hot contravene the terns of the Crown Lease.] Is the FHAN ultra vires Section 9(1) 44. The crucial issue is whether an order under Section 9 can prohibit the use of premises in circumstances where it is not alleged that anything else 'in or on' the premises constitutes a fire hazard. 45. Mr. Whitehead pointed out that Section 9 is silent on the question of 'use'. He further pointed out that 'use' only becomes relevant when a magistrate is considering making a closing order under Section 9(7A). At that point the magistrate can consider 'the location of the premises'. Further under Section 9(7A)(c) one of the matters about which a magistrate considering making a closing order has to be satisfied is whether "the premises are being used for a purpose which may materially increase the likelihood of fire or other calamity or danger to life or property resulting from the outbreak of fire..." 46. Mr. Whitehead submits that merely because the magistrate has to be satisfied that the 'use' is dangerous does not mean that it is a factor upon which the DFS can rely when exercising his Section 9 powers. Setting out a fire hazard in a notice and requesting its abatement is one thing, closing down the premises is entirely different. The legislation was careful to limit the magistrate's power in so doing to circumstances where the use materially increases the risk. The magistrate does not have to make a closing order. It is discretionary. It does not follow that every breach of a FHAN will automatically lead to a closing order. 47. I cannot accept the argument made by Mr. Logan for DFS that assistance in construing the fire hazard abatement provisions can be derived from the 'closing order' provisions. Either Section 9(l) is wide enough to cover the facts of this case or it is not. Can Section 9(l) be used to prohibit or alter the otherwise lawful use of the premises themselves? 48. It is interesting to note that the Section and the notice itself refers to the Applicant as a person "by reason of whose ... default or sufferance the fire hazard arose or continues." In my judgment, these words indicate that for a fire hazard to exist the person against whom it is alleged must have done something which constitutes a fire hazard other than the lawful running of a business on the premises. I agree that the Applicant is suffering his premises to be used as a billiard establishment if one gives the word 'sufferance' its normal meaning. However, as I say, I do not gain assistance from these words. I do not feel that they can be wide enough to cover a situation when an Applicant has done nothing but carry on a lawful business on the premises. 49. In my judgment, Section 9(l) of the Fire Services ordinance contemplates something 'in or on' premises which actually constitutes a fire hazard. An example would be the blocking of a fire exit or the storage of inflammable materials in unsafe conditions. If it were not for the definition of 'fire hazard' continues in Section 2, Mr. Logan would have had difficulty on the wording contained in Section 9(l). 50. Mr. Logan quite naturally relied very heavily on the definition of fire hazard. He agreed that the definitions contained in (c), (d) & (e) did not assist although he tried to gain some comfort from the word 'using' in (e). As to this, I think he was stretching the use of that word too far. His primary submission rests on (f). He says that this definition is a catch all and is intended to be very wide. He submits that the use to which these premises have been put is a "matter or circumstance which materially increases the likelihood of fire or other calamity or the danger to life or property that would result from the outbreak of fire or the occurrence of any other calamity or which would materially hamper the Fire Services Department in the discharge of its duties in the event of fire or other calamity." 51. Mr. Whitehead challenges this construction. He says that there must be an existing fire hazard in or on the premises and that (f) cannot be construed as being wide enough to cover the otherwise lawful use of premises according to the terms of a Crown Lease. 52. If Mr. Logan's argument was correct, it would mean that Section 9 would be available for use in a much wider range of cases than the legislature could ever have intended when enacting it. I have no doubt that the legislature intended to give the DFS very wide powers to take steps to prevent fire hazards as indeed the public interest demands. I would be loath to make any order which unnecessarily circumscribes those posers. 53. Having given this matter the most careful and anxious consideration, I have come to the conclusion that the FHAN in this case is outside the scope of Section 9(1) and is thus unlawful. Apart from the use to which these premises are put, there is nothing 'in or on' them which can amount to a fire hazard. The very fact that the section deals with abatement of fire hazards suggests to my mind something which is actually capable of abatement. I am not impressed by the argument that the abatement in this case is the cessation of business. Wide though the definition of 'fire hazard' is, it is stretching the language used in Section 2(f) too far to apply them to the facts of this case in the light of the statutory framework. Further, I am not impressed by the argument that Section 9 (7A) assists in any way. If it was intended that orders could be made under Section 9(l) on the grounds that the DFS had formed the view that the use to which the premises had been put in itself created a fire hazard, I would have expected to see such powers set out in the clearest of language. It would be a draconian provision. A person might invest considerable sums of money in fitting out premises and taking, a lease in order to use them in accordance with the lease and not in breach of any other law. Subsequently, the DFS could come along and close the premises down because in his view that use should never have been permitted in those premises. If such a provision was to be proposed, I have no doubt that the question of compensation would need, at least, to be considered. 54. In this case, for wholly commendable reasons, the DFS has come to the view that it is not right for commercial user to be permitted in industrial buildings, such as the building in question. He has attempted to enforce this view by use of Section 9(l), but in my judgment Section 9(1) was not intended to be applicable to a case such as this. In that sense, this section is being used in this case to achieve a wider purpose than that contemplated by the language of the section itself. 55. I have said that the DFS has acted in the public interest. Merely because it may be in the public interest for these premises to cease their present use, it does not in itself confer the necessary jurisdiction on the DFS. In my judgment, if the DFS wishes to use Section 9(1) for the purpose he has stated in this case, the legislation will need to be amended to give him such powers. I cannot allow this power to come in by the back door by reason of a strained construction of Sections 2 & 9 of the Fire Services Ordinance. 56. On this ground, therefore, I will grant an order of certiorari to bring up to this court and to quash the FHAN dated 22nd October 1990 in respect of these premises. 57. Although I have quashed the FHAN on the grounds that it was ultra wires Section 9(l) lest I be held wrong in that conclusion, I must go on to deal briefly with Mr. Whitehead's alternative attack on the FHAN. Did the DFS rely on immaterial or irrelevant considerations 58. Mr. Whitehead submits that the DFS exercised his discretion to make a FHAN on the basis of immaterial and irrelevant factors and that his decision was based on erroneous factual material. 59. Exhibit YSW7 to Mr. YEUNG Sai-wing's affirmation dated 15th August 1990 in the licensing application is a memo from the DFS to SUC and it is dated 4th January 1990. Paragraph 4 on this memo states:-
60. Mr. Whitehead submits that this memo shows that the DFS took into account the following matters. Firstly, that the Applicant's premises were open to members of the public. Secondly, that those attending the Applicant's premises were not aware of the fire risks involved at the premises. Thirdly, that children and old people would be using the premises. 61. Mr. Whitehead also relied upon an affirmation of a Mr. Loo of FSD in which he states;
62. Finally Mr. Whitehead submitted that there was no proper inspection of the premises and thus he challenges that each case was being considered on its own merits. 63. Mr. Whitehead submits that on the evidence it is clear that this is a members club and is not open to the general public. The fact remains that subject to the age limits, anyone can join and the reference to examination in the application form was never explained to me although I did ask for more details on two occasions. There are 70,000 members of the Association and they only have two premises. A considerable number of people visit the premises each day and whether the premises are open to the general public or only to those who join, the point relied upon is still, in my judgment, not a good one. Any error here on the part of the DFS is quite insignificant. Even if the DFS had known that it was a members club with 70,000 members with seemingly little restriction on joining, it would have made no difference to the decision which was made. 64. The second point is that in fact on 1st march 1990 (10 days before the decision to refuse the licence) a letter was sent to all members pointing out that 3,000 members a day visited the two premises and it referred to a signboard which was placed near the entrance and which contained information about the building. This letter referred to a diagram about the premises which was said to be going to be sent to members. The purpose of this was to let members know about fire exits in the event of a fire. 65. To say that this letter and the diagram was sufficient to bring home to all 70,000 members the fire risks and arrangements in the event of fire is going far too far. Further there is no evidence as to whether members did read this letter. It may have been read and forgotten. It may have been thrown away without being read. Nothing about the letter detracts from the fact that it is obvious that the 70,000 members, some of whom may be infrequent visitors, would know less about the building in the event of fire than workers who work at such premises. Even if the DFS had been shown this letter, I am quite satisfied that he would not have taken a different view of the matter. In my judgment there is nothing in this point. 66. Thirdly, Mr. Whitehead says that in fact persons under 14 and over 60 are not allowed to join and thus the DFS was wrong to take into account that the young and the old would be visiting the premises. It does seem that an error has been made but I do not think that if the DFS had known the true position, he would have taken any different view. This fact, if known, was not of sufficient weight to counterbalance the main objection that large numbers of people would be visiting the premises and that they would not be as aware of the risks of a fire or the arrangements in the event of a fire. In my judgment, there is nothing in this point. 67. Fourthly, Mr. Whitehead says that there is no evidence that premises of this nature attract criminal elements. Anyone who had sat in on criminal trials in Hong Kong will be aware that billiard establishments are frequently referred to and are often used as meeting places. No doubt the fact that they are open 24 hours, seven days a week makes them an ideal venue. I do not see why Mr. Loo was not entitled to take this matter into account and I do not think there is any substance in this point. 68. Finally, as to the lack of an inspection before issuing the FHAN, there was, in fact, an inspection of the building (but not the premises) in April 1989, so the point about commercial use in industrial premises was known from that visit. Further there was an inspection in September 1990 for the very purpose of deciding whether or not to issue this FHAN. In my judgment, there is nothing in this point. 69. It follows, therefore, that if I had been satisfied that the FHAN was properly made within the provisions of Section 9 of the Fire Services Ordinance. I would not have quashed it on the second ground. Even if on one or more of these grounds, I had found that irrelevant or factually incorrect information had been taken into account I would have exercised my discretion against granting the relief sought. The licensing application 70. Mr. Whitehead submitted that the decision to refuse the licence for a billiard establishment should be quashed because;
71. As to the right to be heard, Mr. Whitehead submitted that the Review of the decision. Which did take place, did not cure the original defect in not hearing from the Applicant before his application was refused. He submitted that his client was entitled to two fair hearings. In any event, he submitted that the Review was inadequate because the policy was adopted and no individual consideration was given to his client's application. 72. As to the taking into account of factually incorrect material, Mr. Whitehead relies on three matters which he relied upon in the FRAN proceedings. These were the members club point, the age limit and the fire instruction to members. Was the Applicant entitled to be heard 73. Mr. Logan for the Urban Council submits that there is no right to be heard before a decision refusing a licence is made. He refers to the statutory framework and the provision for a review to an aggrieved Applicant. He pointed out that Section 125(9) of the Public Health and Municipal Services Ordinance, Cap. 132, which mazes provision for the Review, is in wide terms in that the licensing authority is empowered to make investigations before considering the Review and provision is further made for a hearing and representation, if required. 74. Whether Mr. Logan be right or wrong in this submission, the particular facts of this case demonstrate that the Applicant did have a legitimate expectation that he would be heard. Put simply, the licensing authority informed the Applicant on 29th August 1989 that DFS was still considering the application and "I shall Keep you informed of the development in due course". On 10th November 1989, not having heard anything further, the Applicant wrote to the Urban Council and referred to their letter of 29th August 1989 and asked whether a decision could be expected. On 14th November 1989 SUC wrote to the Applicant and informed him that his application was still under consideration and he would be informed of the development in due course. The next he heard was the refusal contained in the letter dated 13th March 1990. This letter makes clear that the decision was arrived at "after considering an objection from the Director of Fire Services." The grounds of such objection were annexed and the Applicant was informed about his right to seek a Review. 75. In my judgment, the Applicant did in this particular case have a legitimate expectation that he would be consulted if it was contemplated that a licence was going to be refused on the basis of DFS objections. My reasons for so concluding are as follows. 76. Firstly, the Applicant had been carrying on a lawful business for nearly four years at the premises. Secondly, when he commenced business, there was no requirement to obtain a licence. When this requirement came into force it would not have been unreasonable for the Applicant to think that he would, in fact, be granted a licence given that all had gone well previously. Thirdly, and most importantly, the Urban Council's letter of 29th August 1989 must have given him a legitimate expectation that if the Fire Services Department did find grounds to object he would be given an opportunity of being informed of those grounds so that he could attempt to rectify matters before the licence was refused. The conclusion that the Applicant was entitled to be heard because he had been led to believe that he would be heard is strengthened by the fact that the DFS objection was novel. It did not relate to anything 'in or on' the premises and related solely to the use of such premises. This was the beginning of the enforcement of this particular policy. 77. It seems to me that the Applicant's position is analogous to that of the illegal immigrant in Attorney General of Hong Kong v. NG Yuen-shiu (1983) 2 A.C. 629. In that case the Privy Council assumed that an alien was not entitled to a hearing before a deportation order was made under the Immigration Ordinance but held that he was entitled to a hearing because he had, in fact, been promised one. As the Privy Council put it in that case:
78. I pause here only to observe that it a mazes me that despite the plethora of decisions on administrative law dealing with the right to be heard over the past 25 years, public authorities are still failing to take the elementary step of notifying someone that their commercial interests are going to be affected by a refusal to grant a licence. Regardless of whether or not the Applicant had a right to be heard under the Ordinance, or was promised that he would be heard or was given a fair review, one letter from the Urban Council informing him of the Fire Services Department view and its likely adoption by the Urban Council and asking for any representations within, say 7 days could have prevented this whole saga. If the Applicant had been shown the Fire Services Department's objections as set out in the memo to Urban Council, the Applicant could have made all his points and then would have had no cause to complain at least so far as procedural unfairness was concerned. 79. So I conclude that on the facts of this particular case, the Applicant did have a right to be heard before his application was refused and that he was denied that right. Did the review hearing cure the failure to hear the Applicant 80. Mr. Logan submits that if the Applicant was entitled to be heard, which he did not concede, then he had his hearing when he exercised his statutory right to seek a Review of the decision. Mr. Whitehead submits firstly that the Applicant was entitled to two fair hearings and secondly, that the Review was unfair because it was plain that the FSD policy was going to be adopted and nothing the Applicant said could have affected the matter. 81. In Calvin v. Carr [1980] A.C. 574, Lord Wilberforce in giving the advice of the Privy Council stated;
82. His Lordship then went on to suggest that in the case of social clubs where there is a rule providing for a hearing by the same body or an enlarged version of it, it is not hard to conclude that the first hearing is superseded by the second. On the other hand, he said there were cases like Leary v. National Union of Vehicle Builders [1971] Ch. 34 when after examination of the whole hearing structure "the conclusion is reached that a complainant has the right to nothing less than a fair hearing both at the original and at the appeal stage". He further concluded that Megarry, J. in Leary had stated the principle too broadly because there was an intermediate class of cases where what was required was a fair decision at the end of the day. Lord Wilberforce went on to approve a decision of the High Court of Australia in Twist v. Randwick Municipal Council [1976] 12 ALR 379. 83. In Twist, a local authority was empowered to order the demolition of buildings. An owner receiving such an order was given a statutory right to appeal against it to the District Court. Such decision was final. The owner did not appeal to the District Court nor did he demolish the building. The authority resolved to exercise its power to enter on the land and demolish the building itself. The owner appealed to the Supreme Court of New South Wales for a declaration that the demolition order was invalid and unenforceable and the resolution to enter and demolish was null and void. The Supreme Court refused this relief and the owner appealed to the High Court to dismiss the appeal on the ground that the appeal to the District Court was the exclusive remedy available to the owner. At pages 382-3, Barwick, C.J. said this;
84. Applying these principles and having regard to the statutory scheme, I have come to the conclusion that on the facts of this case a fair Review hearing would 'cure' the original failure to hear the Applicant who was entitled to be heard originally by virtue of the legitimate expectation to that end which he had. It may well be that in normal cases where no legitimate expectation to be heard exists that there is no duty to hear an Applicant for a licence under this Ordinance. All sorts of activities are subject to the licensing provisions under this Ordinance and the legislature may well have considered that it would be too onerous a duty to place on the licensing authority a duty to hear every Applicant for a licence. Hence the legislature built in the Review provisions which are in wide terms and seem to me to permit a de novo hearing. Why else would the licensing authority be empowered to make investigations before deciding on the review. Further, the licensing authority is given very wide powers to "confirm, vary, suspend or cancel the decision in question or may extend any time specified for compliance with the requirements of any notice issued". (S.125(9) of Cap. 132 - see above.) 85. Thus in a normal case, the Review is the stage at which the Applicant is given a chance to present his case. In a normal case, an Applicant is unlikely to have the legitimate expectation that this Applicant had. Most Applicants for licences have not been carrying on business for three years before the application became necessary. Most of them will not have been consulted about some objections and led to believe that they would be consulted in the event of others. Most of them will not be involved in the first case where a new policy is to be enforced. I stress these points to indicate that I consider the facts of this case quite unusual and the fact that I have concluded that this Applicant had right to be heard before the refusal to grant him a licence should not be taken to be of wider application in other cases. In the absence of the special features that exist here, the Review provides an adequate remedy and is the one intended by the statutory framework. I should add that Section 146(5), Cap. 132 makes clear that nothing contained in that Ordinance "shall be construed to prevent any person applying to the high Court for a mandamus, injunction, prohibition or other order should he elect to do so in lieu of applying to the Governor-in-Council." 86. If I am wrong in concluding that the Applicant had a right to be heard before the refusal of the licence then, of course, he would still have the right to a fair Review. Did he have a fair Review under the Ordinance? Was the Review hearing a fair one? 87. The Public Health Review Committee met on 10th May 1990. For this item of the agenda, Mr. Loo of FSD was present. Mr. YEUNG Sai-wing was present for the Association and he was accompanied by Mr. Allan Collins, a solicitor. The hearing had, in fact, been fixed for the 18th April 1990 but has been adjourned to enable the Applicant to prepare his case. 88. Mr. Collins presented his client's case. He took issue with the FSD's objections relating to commercial use in industrial premises. He submitted that industrial premises could be used for commercial activities if the FSD's worries on fire hazards were dispelled. He pointed out that the premises were not open to the public but only to registered members. He made the point that registered members should be aware of the probably higher fire risk in industrial premises. He did not state why and it is of interest to note that he did not produce to the Committee the letter of 1st March 1990 referring to the signboard and the diagram. He submitted that there were no dangerous goods stored on the upper floors nor were there any industrial undertakings which might involve higher fire risk. He concluded his address by stating that his client would like to discuss and co-operate with FSD to solve the problems and he suggested remedial measures, such as providing a separate means of escape and the installation of fire prevention and protection equipment. 89. After Mr. Collins had concluded, Mr. Loo of FSD produced a sketch plan of the building. In answer to a question, he stated that there was 'no way' that a billiard establishment should be accommodated in an industrial building. 90. In reply to e further question from the Committee, Mr. Loo stated that FSD might accept certain non-industrial activities to be undertaken in industrial premises if they were compatible with or auxiliary to industrial activities, such as factory offices, food provision shops and banks. He added that FSD had never accepted non-industrial establishments which would attract a large crowd of outsiders. 91. Mr. Collins responded by saying that a further adjournment seemed unlikely to assist and he queried how this could be FSD policy if it was the first case of its kind. 92. Mr. Loo responded by saying that FSD wished to have a consistent policy relating to applications for billiard establishment licences in industrial premises. To this end, he stated that FSD had gone through a comprehensive consultation exercise before they came to a conclusion. However, he added that it was a matter for the Urban Council to decide on the FSD view and it was their responsibility to inform the Applicant of its decision. 93. The Legal officer to the Urban Council referred the Committee to the Places of Amusement (Urban Council) Bye-Laws Regulation 5(2) which I have quoted already. 94. Mr. Loo made it clear that for FSD to have a consistent policy towards the application they had consulted very widely and that FSD had acted "in line with the interest of the Applicant and the public at large". 95. Mr. Collins was invited to make a closing speech but he declined. He was asked whether he still wanted an adjournment and he replied that there was no value in that and that the council should now make a decision. 96. The Committee then adjourned the case to a private session. One member supported rejection because (as is recorded) "the relevant Bye-law had required fulfillment of the FSD requirements before the licences were granted and the FSD had viewed that the application would definitely not be able to fulfill the requirement." I should interpose here that Mr. whitehead took issue with this view because he said there was no requirement made by the FSD and that the member who made this point had misunderstood the law. 97. Three other members were prepared to agree with the rejection although they were dissatisfied with the working style of the FSD in dealing with the application because if the application was considered "out of question" under their policy, it should be turned down without delay. 98. Members' general view was "that the Department should liaise with the FSD so as to improve the consultation process, in particular to shorten the response time on deciding the applications for billiard establishment licences; that the Department should treat the Council decision on the above case as a precedent and formulate a policy to deal with similar applications expeditiously in future." 99. Mr. Whitehead said that the final view of members amounted to a fettering of their discretion because they were always going to say 'no' to applications of a similar nature. 100. Mr. Whitehead mounted an attack upon the Review Committee's approach. In essence, he said that Mr. Collins was faced with a fait accompli. Mr. Loo was not going to budge and the Committee misunderstood the effect of the Places of Amusement Bye-Laws and the Committee did not exercise any discretion cut merely endorsed the policy of the Fire Services Department. 101. Mr. Logan points out that the members of the Committee were not lawyers and one must be rather. careful when considering the words that they nave actually used. He said that it was clear from the notes of the meeting that a blanket policy was not being enforced because Mr. Loo recognised that there were some exceptions which would be accepted by the Fire Services Department. He submits that the licensing authority ahs considered this particular case fully on its merits and it would be perfectly reasonable for it to take into account the views of the Fire Services Department. As far as policy is concerned he says that the policy was not that of the licensing authority but that of the DFS which the licensing authority was entitled to consider. On policy generally, he mentioned the House of Lord's decision in British Oxgyen Company Ltd. v. Board of Trade (1971) A.C. 610 at 625 where Lord Reid, considered a statement of Bankes, L.J. in an earlier case who had drawn a distinction between cases where a tribunal has adopted a policy, hears the applicant but informs him what the policy is and that after hearing him will decide against hire unless there is something exceptional in the case, against on the other hand, cases where a tribunal has passed a rule not to hear any particular application. He said this:-
102. Mr. Logan made much of the fact that Mr. Collins was present and had an opportunity to put the Applicant's case, which he did. He declined an adjournment and refused the offer to make a closing speech. He pointed out that when the Urban Council wrote to the Applicant about the staircase and the Building Ordinance in August 1989, the Applicant made no reply. He points out that Mr. Collins did not refer the Committee to the letter of the 1st March 1990 which had been sent to members. He also pointed out that Mr. Yeung in paragraph 9 of his affirmation makes the point that had the Applicant been made aware of the FSD objections before refusal in March the Applicant would have been enabled to make "constructive and responsible representations to the licensing authority about the said objections which might have resulted in the licensing authority taking a different approach and rendering a different decision". He then goes on to state that after receiving the decision on 13th March 1990, the Applicant consulted Hinkey Technical Services Co. which specializes in fire service precautions. He says that their report would have been placed before the licensing authority before its decision in March had it had notice of the objection. 103. This last point is rather disingenuous because the Hinkey report is dated 17th July 1990 and was clearly prepared for these Judicial Review proceedings. No effort was made to obtain it and place it in front of the Review Committee in May. I cannot but conclude that the Applicant did not treat the Review hearing as seriously as he should have especially after having it adjourned in order for him to prepare his case. The Applicant never applied for an adjournment to obtain the Hinkey report for the Review Committee. 104. In my judgment, the statutory framework makes clear that the Review hearing was intended to be the occasion when an aggrieved person has an opportunity to put forward his case. The Applicant availed himself of the Review procedure but presented the case somewhat half-heartedly. For this, the Applicant only has himself to blame. 105. In my judgment, the Review hearing was fair and I dismiss all Mr. Whitehead's strictures. In my judgment, the Review committee was entitled to take into account the FSD's objections and indeed it would be absurd if this s was not the case. Mr. Loo made it clear that the decision was for the Urban Council and not for the FSD and bearing in mind Lord Reid's observations in British Oxygen, I see nothing wrong do what happened in this case. 106. In my judgment, the Review hearing 'cured' the failure to hear the Applicant (on the facts of this case) and there was no fettering of the Urban Council's discretion. 107. Finally, Mr. Whitehead submitted that the original decision of March 1990 should be set aside because factually incorrect and irrelevant material was considered. He relied on three of the chatters that tie has relied on in the FHAN proceedings. This related to the members club, the age limits and the letter of 1st March 1990. In my judgment, there is nothing in any of these points because there was a statutory Review in which Mr. Collins for the Applicant did make the point about the members club and could have mentioned the age limits and placed the letter of the 1st March 1990 before the review Committee but did not do so. Again on this point, the Review 'cured' any defect in the original decision making process. 108. Even if I had concluded that on any of the grounds advanced the Review hearing was not fair and did not cure the original failure to hear, I would still have exercised my discretion to refuse relief. I have already made the point that some of the complaints are hollow especially that relating to the Hinkey report. It seems to me patent that this decision was not an easy one given the peculiar circumstance of the case. Nevertheless long (perhaps too long) and anxious consideration was given to this application and the Applicant did have an opportunity to put his case fully to the Review Committee. His case was considered but the FSD objections were overwhelming in the public interest. 109. I cannot leave this case without expressing some sympathy for the Applicant who was no doubt confident of obtaining a licence following over three years successful and lawful use of the premises. However, at the end of the day the Urban Council decided that the FSD objections could not be ignored. The Review Committee's decision was ratified by the Public Health Select Committee on 6th June 1990 and it is not without significance that the Legal Officer of the Urban Council stated on that occasion that each case should be considered on its merits and the FSD should be consulted each time when there was such an application. 110. Finally, I would like to thank both counsel for their most helpful and concise arguments (both written and oral) which I found of great assistance in this difficult case. I therefore dismiss the licensing application. I will hear Counsel on costs and the form of order in the FHAN proceedings as soon as a convenient date can be arranged.
Representation: Mr. R. Whitehead instructed by Haldane, Midgley & Booth for the Applicant Mr. D.P. Logan, Crown Counsel for the Respondent. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||