Re Yeung Choi Wan
Read the full judgment text of HCMP 762/1979 on BabelCite. This High Court CFI judgment.
1. The Tai Pin Recreational Fraternity Association is a registered society and has premises of some 3,600 square feet at No. 118 Wu Sung Street, 2nd floor, Kowloon. It is said to have over 3,000 members. It's objects are to provide recreational activities for members, their relatives and friends and to promote friendship among them. These particulars can be gathered from the application of its chairman Madam YEUNG Choi Wan on behalf of the Association to the Commissioner for Television & Enterta
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HCMP000762/1979
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----------------- Coram: Full Bench (Zimmern & O'Connor, JJ.) Date of Judgment: 27th February, 1980. ----------------- JUDGMENT ----------------- Zimmern, J.: 1. The Tai Pin Recreational Fraternity Association is a registered society and has premises of some 3,600 square feet at No. 118 Wu Sung Street, 2nd floor, Kowloon. It is said to have over 3,000 members. It's objects are to provide recreational activities for members, their relatives and friends and to promote friendship among them. These particulars can be gathered from the application of its chairman Madam YEUNG Choi Wan on behalf of the Association to the Commissioner for Television & Entertainment Licensing for an Automatic Machine Establishment Licence of the 21st December, 1977. 2. She was interviewed in June 1978 by a processing officer who warned her of the responsibilities of such a licensee. By a letter dated 26th June, 1978 from the Commissioner she was informed of the Commissioner's approval for the installation of six machines subject to certain information to be supplied. The last paragraph of this letter reads as follows:
3. The licence valid for a year from 3rd July 1978 was issued with conditions special and otherwise printed thereon but there was no imposition in writing or in print as stated in the letter that "the machines are only for the use of your association members for recreational purpose". 4. Under the Miscellaneous Licences Ordinance Cap. 114, Section 4 provides:
Automatic machine establishment specified in the First Schedule is interpreted in Sec. 2 as meaning "any place at which an automatic machine is installed". In short no one may keep any place in which such a machine is installed without a licence. 5. On 2nd May 1979, the Commissioner by letter advised Madam Yeung that her licence will expire on 4th July 1979 and that should she wish to renew she would be required inter alia to complete the application form attached. Her application for renewal was received by the Commissioner on 21st May 1979. 6. By a police department memo dated 20th June 1979 the Divisional Superintendent/Yaumati informed the Commissioner of Police (SO Licensing) that he strongly objected to the renewal of the licence on the grounds that
It then set out details of seven incidents. Then
7. A copy of this was apparently sent to the Commissioner and on the 28th June, 1979 Madam Yeung was requested to attend for an interview which she did on 3rd July, 1979 the eve of the expiration of her licence. Without showing her the police memo the interviewing officer told her of its contents and she was invited to give her explanations which were recorded in note form. She was then told she would be informed of the Commissioner's decision as soon as possible. The matter was kept in abeyance for sometime pending the outcome of certain magisterial cases which might affect the Commissioner's decision. 8. On 24th September the Commissioner wrote to Madam Yeung in part as follows:
The grounds of objection set out relevant to these proceedings are:
9. By a letter dated 5th October, 1979 solicitors on behalf of Madam Yeung made representations to the Commissioner in part as follows:
10. By a letter dated 6th October, 1979 the Commissioner informed Madam Yeung of his refusal to renew her licence after careful consideration of her representations to the police objections. 11. On 22nd November 1979 she obtained leave to apply for Order of Certiorari and Mandamus to quash the Commissioner's decision and to compel him to renew the licence and application was heard by us on the 11th and 12th January, 1980. 12. By her statement pursuant to Order 53 rule 1 she relied on four grounds for the relief sought, namely:
13. Mr. Sanguinetti, counsel for the applicant said first there was an error of law on the face of the record in that the Commissioner was bound to decide to renew or not not later than the date of expiry of the licence on the 4th July, 1979 and he did not decide till 6th October, 1979. After all the application was made in May 1979. Further the Commissioner was required under Regulation 7(3) of the Ordinance to give seven days notice of his objection to the renewal. Notice was given well after the date of expiry rendering it a nullity. Second the manner in which the Commissioner dealt with the matter was against the rules of natural justice. He dealt with each of the objections raised by the police and relayed to Madam Yeung for her representations but we have only to deal with (e) and (f) as the Commissioner has deposed in his affidavit:
As to (e) Mr. Sanguinetti says it was only one isolated incident and of the 15 persons arrested only two statements were produced to show that those two were not members. There was no evidence to show they had not been introduced by members. Further this was insufficient to support the representations of the police to the Commissioner. Furthermore although Madam Yeung as licensee was summonsed for conducting a public billiard saloon without a licence no evidence was offered against her. Only the manager pleaded guilty and he was wrongly advised. 14. As to (f) there was no duty on the part of the licensee to be present and in any event she has satisfactorily given her reason. Furthermore, there is no evidence that members of the public had been admitted to the premises freely or otherwise. The restriction imposed by the Commissioner as a condition of the grant as set out in his letter of 26th June 1978 reading
was never endorsed on the licence therefore not binding. As was clearly stated in his clients' application the objects of the association are to provide recreational activities for members and members relatives and friends. 15. The Commissioner was wrong in law on the face of the record for he said in his affidavit "I was satisfied that the Association was admitting non-club members". First there was no evidence of this and second members were permitted to invite guest. 16. In support of his arguments Mr. Sanguinetti relied on certain passages from Lord Denning's book. The Discipline of Law at pp 84/85 and in particular
There Lord Denning was quoting from his own judgment in the Privy Council in Kanda v. Government of Malaya(1). Mr. Sanguinetti said that as the objections of the police contained in the memo had not been shown to his client, and with all the evidence available, his client did not have an opportunity to correct or contradict them. He also relied on R. v. Barnsley Metropolitan Borough Council ex parts Hook(2) where it was held inter alia that the local authority was in breach of the rules of natural justice since the committee had heard the market manager's evidence in the absence of the applicant or his representative, and the market manager, who was in the position of a prosecutor, had been present at the deliberations of the committee when it came to its decision. I can only presume that Mr. Sanguinetti meant that the Commissioner had lent his ears to the police without earshot of Madam Yeung or her agents. 17. Upon application this Court has the power to review the decision of the Commissioner in the exercise of his discretion given by ordinance and it is the same whether his decision is an administerial or quasi-judicial matter. There is no argument as to this between counsel. This Court has the power and will interfere if it finds that the Commissioner has not acted impartially or fairly, or has acted without or in excess of jurisdiction or where it appears on the face of the record that the decision was erroneous on point of law. As we are dealing with the Commissioner's decision, I think it proper to look at first the subject matter for his decision and then what he has to consider. First the subject matter: it is an application to renew a licence, first granted the year before, under the provisions of Cap. 114 to keep an automatic machine establishment. Next what he has to consider. Clearly he must consider whether the applicant has been in breach of any of the Regulations under the Ordinance or conditions imposed on the licence and the general conduct of the premises during the period under review. Regulation 7(1) provides that he "may" refuse to renew for causes therein set out including:
Regulation 7(3) provides that "in all other cases" he shall not refuse to renew unless he has given seven days' notice that objections have been taken or will be taken to such renewal. Cap. 114 imposes restrictions on keeping places for quite a mixed bag but appears to be stricter on automatic machines than the others for as I have stated mere installation in a place turns that place into an establishment. 18. Mr. Sinclair for the Commissioner said there is no legal right to a renewal as it is a matter of discretion. What the applicant has is an expectation and that expectation is perhaps greater in the case of a regrant than a first application. He relies on Mclnnes v. Onslow Fane(3) wherein Megarry V-C said:
19. I think Mr. Sinclair is right. Representations had been made to the Commissioner by the police on the conduct of the premises during the year under review. These were fairly and squarely put to Madam Yeung for her answers and the Commissioner was not satisfied with them and gave his reasons why he was not satisfied and hence his refusal to renew. I can see no breach of the rules of natural justice in his dealings with Madam Yeung and in my view he has acted fairly in all the circumstances of the case. I would like to point out specifically one matter. Madam Yeung was confronted with this representation
In reply her lawyers said:
It is clear beyond doubt that her lawyers did not even deny the second sentence in (f). The licence was granted to her in the first instance on the condition that the machines were to be used by members of the association only - NOT members and their relatives and guests. The Commissioner is so empowered by Clause 40(2)(b) of the Interpretation and General Clauses Ordinance. That this condition was not imposed in writing on the licence itself did not nullify it. She was in breach. 20. As to errors of law on the face of the record no principle or authority was cited to support the contention that the Commissioner was bound to decide whether to renew or not later than the date of the expiry of the licence on the 4th July 1979. 21. Generally a renewal of a licence would be made during its existence and when it is about to expire but there is no principle of law which disallows an application subsequent and the grant of a renewal thereupon. It is a matter of power and discretion given to the authority under the law governing the licence. For example under Order 6 rule 9 of the Rules of the Supreme Court the Court is expressly empowered to entertain an application for the renewal of a writ of summons before, on or after the date of expiry. There is no such express power given in the Ordinance but the Ordinance is silent as to time. Regulation 7(3) merely provides that the Commissioner shall not refuse to renew unless he has given to the applicant not less than seven days previous notice that objections have been or will be taken to such renewal. Regulation 11 which provides for application and renewals does not mention time at all. On my construction of the Ordinance and the Regulations, an application to renew after the expiry date is not invalid per se nor is the grant or refusal after the date of expiry to an application made before. The applicant also fails on this point. 22. For the reasons given the application is dismissed with costs. Representation: (1) [1962] A.C. 322 at 337 (2) [1976] 3 A.E.R. 452 (3) [1978] 3 A.E.R. 211 @ 218
IN THE SUPREME COURT OF HONG KONG MISCELLANEOUS PROCEEDINGS -----------------
Coram: Full Bench (Zimmern & O'Connor, JJ.) Date of Judgment: 27th February, 1980 ----------------- JUDGMENT ----------------- O'Connor, J.: I agree and there is little I wish to add. Where a licence of some sort is given for a fixed period, there may be and often is an implication that if the licensee obeys the terms of the licence he may expect that it will be renewed. The way it is often put is that he has a legitimate expectation that it will be renewed. In my view it would be more accurate to say that he has a legitimate expectation that any application by him for renewal will be dealt with fairly, and this will involve giving due consideration to his position as a former or existing licence holder. The withdrawal or non renewal of a licence may cause the loss of, or adversely affect a business or occupation, and may lessen the value of assets that have been acquired in the expectation of the continuation of the licence. Fairness requires that such matters be borne in mind when a decision is being made as to whether a licence be renewed. There is no reason to think such matters were not borne in mind by the Commissioner in the present case. The Commissioner received objections from the Commissioner of Police to the renewal of the applicant's licence. In my opinion he was entitled to receive such a report and to act upon it, provided that before acting upon it he drew the applicant's attention to the grounds of objection, gave the applicant the opportunity of commenting on or answering the objections, and gave proper consideration to what she put before him. Mr. Chan the Licensing Officer dealing with the matter interviewed the applicant and put before her the objections raised by the Commissioner of Police. He listened to what she had to stay about them and made a minute on the file about the interview. A perusal of the minute could lead to the conclusion that at the interview she was not given sufficiently detailed grounds of the objections, though it must be kept in mind that the note when typed is only 18 lines long, while the interview lasted half an hour. However even if the grounds of objection were not sufficiently brought to her attention at the interview, the same cannot be said about the letter subsequently sent to her on 24th September 1979, which set out the objections in detail and asked for her observations on them. The list of objections sent to the applicant did not include two of the objections originally made by the Commissioner of Police. These two objections were omitted, it appears, because one of them related to an incident prior to the grant of the licence and the other objection had been withdrawn by the Commissioner of Police as the result of a verdict of acquittal when witnesses failed to turn up. I consider no criticism can be made of the failure to give the applicant notice of two objections which the Commissioner had decided were irrelevant. He is to be credited with the ability to ignore such matters as he has found irrelevant. The list of objections sent to the applicant did not include some comments by the Commissioner of Police. However those comments were not statements of fact and there is no reason to think that they were treated as other than what they were. I do not consider fairness required them to be put before the applicant. The applicant replied, through her solicitor, to the Commissioner in a letter which commenced by saying' we are instructed by our client to make written representations concerning the objections which we hereby do'. The letter went on to comment on these objections. The Commissioner apparently was satisfied with the representations made on applicant's behalf in respect of all the objections save those at (e) and (f). My brother Zimmern has set out those objections and the representations made thereon. Mr. Sanguinetti for the applicant says as to objection (e) that while the applicant was summoned for that matter, no evidence was offered against her and that while her manager pleaded guilty, he was wrongly advised. There is no evidence to indicate he was wrongly advised, and it is perhaps significant that he did not appeal, though if the wrong advice was as Mr. Sanguinetti indicates, one would have expected an appeal to have been lodged and indeed to have succeeded. I cannot see any substance in the suggestion of wrong advice, nor was any suggestion made to the Commissioner that the plea was not good. The objection at (e) does not fall to the ground because the applicant was acquitted in respect of it, on the offering of no evidence. The conviction of her manager is evidence of what occurred on the premises, and that is a relevant matter to be borne in mind by the Commissioner in deciding whether the terms of the then existing licence had been obeyed, and whether it was a proper case in which to issue a new licence. The licence held and intended to be renewed, was limited to those premises in respect of which the manager was convicted. It must be borne in mind that the Commissioner is not only concerned with the fitness of the applicant, but also with the fitness of the premises, and is entitled to consider what happened on those premises. As to the objection at (f) it is to be noticed that the applicant's answer through her solicitor commences' (f) With respect to the first part of this objection ...' and then goes on to deal with the first part. It does not deal at all with the second part or sentence. The Commissioner was entitled to bear that in mind. Mr. Sanguinetti says that the reason the applicant's solicitors did not deal with the second sentence of (f) was that the second sentence was a reference to the matters set out at (e) and that it had therefore already been dealt with. I do not accept that, nor do I accept that as being what the solicitors thought. In my view it cannot be said that the applicant did not have the grounds of objection placed fairly before her, nor can it be said she was not given a full opportunity to answer them. Subsequently the Commissioner considered the objections and the submissions on behalf of the applicant. His affidavit indicates that he accepted the applicant's submissions in respect of most of the objections, but did not accept them in respect of others. He bore in mind the public interest and decided not to renew the licence. In my opinion he acted fairly in the circumstances. Nothing turns on whether his decision, at the time he made it, having regard to the expiry of the old licence, was technically on the grant of a new licence or the renewal of an existing one. The Commissioner, rightly in my view, treated it as being an application for a renewal. I would also dismiss this application.
Representation: A.J.J. Sanguinetti & E. Chung (Poon & Sum) for Applicant. M.M. Sinclair, Crown Counsel for Crown/Respondent. |