Re Robert Steer Huthart
Read the full judgment text of HCMP 1238/1980 on BabelCite. This High Court CFI judgment.
1. This is an application for leave to apply for Judicial Review which is made on behalf of Mr. Robert Steer Huthart the application arising in respect of premises known as Disco Disco, a discotheque situate at the basement, Ho Lee Commercial Building, 40 D'Aguilar Street, Hong Kong. On the 23rd July 1980 an application was made to the Liquor Licensing Board on behalf of the applicant for the renewal of the liquor licence in respect of Disco Disco which application the Board refused. By a petiti
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HCMP001238/1980
----------------- Coram: Full Bench (Barker & Liu, JJ.) Date of Judgment: 23rd December, 1980. ----------------- JUDGMENT ----------------- Barker, J. : 1. This is an application for leave to apply for Judicial Review which is made on behalf of Mr. Robert Steer Huthart the application arising in respect of premises known as Disco Disco, a discotheque situate at the basement, Ho Lee Commercial Building, 40 D'Aguilar Street, Hong Kong. On the 23rd July 1980 an application was made to the Liquor Licensing Board on behalf of the applicant for the renewal of the liquor licence in respect of Disco Disco which application the Board refused. By a petition and supplemental petition the applicant petitioned His Excellency the Governor in Council. These petitions were considered by the Governor in Council on 11th November 1980 and were rejected. 2. On the 25th November 1980 a Full Bench granted leave to the applicant to apply for judicial review but it appears that the Full Bench will not be in a position to hear and determine that matter until February 1981. Pending a decision by the Governor in Council, the Liquor Licensing Board did in fact grant a temporary liquor licence in respect of Disco Disco which expired in November 1980. In our judgment the Liquor Licensing Board had no jurisdiction to grant that temporary licence. What is urged upon us in this case is that notwithstanding that it is agreed and plain from a construction of the Dutiable Commodities Liquor Regulations made under Section 6(1)(n) of the Dutiable Commodities Ordinance that the Liquor Licensing Board had no power to grant a temporary licence nor for that matter does the Commissioner of Police, the Director of Trade & Commerce has that power and that he has it is said refused to consider an application made for that purpose by or on behalf on Mr. Huthart. 3. It is true that the Director has not considered an application, his reason being that he has in any event no power or jurisdiction to make or to grant the licence asked for. In order to consider these submissions, it is necessary to look at the Ordinance and the Regulations made thereunder. Section 2(1) of the Ordinance is the definition section. By that "Director" means "the Director of Commerce & Industry and includes a deputy and assistant director and Assistant Commissioner of the Preventive Service". The present title of the Director has changed but quite clearly that definition applies to the present Director. "Licence" under the same definition subsection means "a licence granted or issued under this Ordinance or under the former Ordinance" and 'liquor licence" means" a licence for the sale or supply of liquor at any premises specified therein for consumption on the premises". 4. Then one passes to section 6(1)
and by section 6 (1)(n) he in Council may prescribe or provide for
In accordance with section 6(1)(n) of the Ordinance the Dutiable Commodities Liquor Regulations were brought into being whereby Liquor Licensing Boards were established and by regulation 20 of the Regulations which provides for the issue and duration of licences, subsection (3) provides:
and by regulation 25(1) :
It is to be observed that in so far as the persons or bodies able to issue liquor licences, no mention is made in the regulations of the Director. 5. So I come back to the terms of the Ordinance and I read section 7(1):
and Section 3 reads :
6. What is urged on behalf of the applicant is that there is in fact a lacuna in the Regulations and that Section 8 is what has been described as a catch-all provision designed to fill any lacunae which the Regulations may have left and it is said that it is by virtue of that section the Director has power if he sees fit to grant a temporary licence. I do not agree. In my judgment Section 8 is merely a procedural section whereby an applicant can apply for a licence. If it is a licence in respect of which regulations have been made then he does it in accordance with those regulations and if a case not provided for by the regulations then he does it either personally or in writing to the Director in accordance with the form approved by him furnishing such information and evidence as the Director may require. But that section in itself does not empower the Director to do anything. So if and in so far as this application is founded on Section 8 in my judgment it clearly fails. But there is a further limb of the argument which says that if the argument founded under Section 8 is not correct then Section 7 applies. And it is said that in Section 7(1)(a) which I will read again so far as it is relevant:
those words "for the periods prescribed" mean prescribed by the Director. The words go on:
and it is said that means if no such period is prescribed in any case meant by the Director. That seems to me to be an untenable construction of the words "for the periods prescribed". It is to be observed that in Section 6(1) the section begins: "The Governor in Council may by regulation prescribe" by various methods and in my judgment the words in Section 7(1)(a) relate to "for the periods prescribed" by the Regulations or by the Ordinance. The periods prescribed by the Regulations are set periods of 12 months, 6 months, 9 months or 3 months. Moreover the second part of the subsection "or if no such period is prescribed in any case, for periods of one year at a time" does not in any event grant the Director power to grant a temporary licence for an indeterminate period. But it is said if that be wrong then under section 7(1)(b) the Director may under subsection (1) grant a licence for a set period but make it subject to the condition that that set period shall determine upon the outcome of the decision of the Full Bench. Once again I cannot accept that argument. Section 7(1)(a) is the subsection dealing with the periods of the licence, Section 7(1)(b) is dealing with conditions and restrictions other than the duration of the licence. In my judgment the Director was perfectly correct in his view that he himself has no jurisdiction to grant a liquor licence and further even if he had, he has in my judgment no jurisdiction or power to grant a temporary licence. For these reasons in my judgment this application for judicial review fails. Liu, J.: 7. I agree that leave should not be granted. The case, the applicant seeks an opportunity to place before the Full Bench, is plainly unarguable. The Director is undoubtedly correct in rejecting the application under section 8 on the grounds given is his letter exhibited to the affidavit of Mr. Llewellyn sworn herein on the 23rd December, 1980 and therein marked "SPL-5". 8. There is little that I can usefully add except to say that insofar as the applicant may legitimately invoke section 7, it was not a matter specifically put before the Director for his consideration. Section 7 is clearly made subject to the provisions of the Ordinance which have, by regulations, vested in the Liquor Board and for special occasions, the Commissioner of Police matters pertaining to liquor licence applications. 9. If successful, the applicant will, in substance, demand that his application for a temporary licence be entertained. Apart from the Director's "absolute discretion", it is evident that section 7 does not provide for a grant of a licence for an indeterminable period with reference to or until the ultimate determination by the Full Bench in the applicant's other application. The section speaks merely of grant of a licence for a prescribed term or a year. 10. The applicant's contention is obviously unsustainable, and I would also refuse leave sought by the applicant.
Representation: Mr. Barretto instructed by Hampton, Winter & Glynn for applicant. |