Re Skal Travel Service Ltd

HCMP000391/1975

IN THE SUPREME COURT OF HONG KONG

(ORIGINAL JURISDICTION)

MISCELLANEOUS PROCEEDINGS NO. 391 OF 1975

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Coram: Briggs, C.J., Huggins & McMullin, JJ.

Date of Judgment: 22 October 1975

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DECISION

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1. This is an application for an order of Mandamus. The applicant, Skal Travel Service Ltd., is a company carrying on the business of travel agents in Hong Kong. Some time late in 1972 the applicant applied to the Hong Kong Tourist Association to become a member of that Association.

2. This application was considered by the Board of the Hong Kong Tourist Association on December 7th, 1972, and was rejected on the ground that they considered the use of the word "Skal" in the name of the applicant was misleading since that is the title of an internationally known travel organization, which has a branch in Hong Kong.

3. This decision was communicated to the applicant on December 13th, 1972.

4. In January 1975 the applicant made a fresh application for membership of the Hong Kong Tourist Association. They were requested by the Association to pay the sum of $250 and asked to complete a questionnaire. A further sum of $50 was paid later.

5. This application was also rejected and the sum of $300 was returned to the applicant.

6. The applicant complains that both their reputation and their business have suffered by their not being members of the Hong Kong Tourist Association. In particular, because of the Association's refusal of their application they have been unable to become a member of other travel associations.

7. The relief sought is an order of mandamus directed to the Board of the Hong Kong Tourist Association that the applicant be admitted to membership of the Association.

8. The applicant relied upon two grounds. First, that the Board of the Association did not comply with the rules of natural justice when they exercised their discretion in rejecting the application for membership. Second, that the applicant had in fact been accepted as a member of the Association by reason of the fact that the Association had asked for and received $300 which was, in the circumstances, a membership fee.

9. The Hong Kong Tourist Association was established by the Hong Kong Tourist Association Ordinance (Cap. 302). The Ordinance lays down the objects of the Association which for our present purposes may be said to be the increase and development of tourism in Hong Kong. This includes publicity in Hong Kong and abroad.

10. One of the duties of the Board is the admission to membership of the Association.

11. The relevant portion of sections 5 and 6 of the Ordinance read as follows:-

12. The first point made by Mr. van Buuren was that the Board was bound to give a reason for the rejection of an application. In the present case, a reason was given in 1972 but not in 1975. However, the application on each occasion was made by "the SKAL Travel Service Ltd." Namely, the second application was made in the same name as the first application and it was this name that was objected to by the Board. In these circumstances, we think that the applicant can have been in no doubt as to the reason for the rejection of their application.

13. We were asked at the end of the day to decide whether the Board should always give reasons for the refusal of an application for membership. We do not intend to answer that question. It is enough to state that in the present case the applicant must have known the reason for the rejection of their application.

14. The Board clearly has a discretion. Mr. van Buuren, who appeared for the applicant, drew the attention of the Court to a line of cases starting with R. v. Boteler⁽¹⁾ ending with Parfield v. The Ministry of Agriculture and Fisheries⁽²⁾ which establishes the proposition that when a statutory body exercises its discretion it has a duty to act fairly and reasonably.

15. The discretion of the Board must be exercised so as to assist in carrying out the objects for which the Hong Kong Tourist Association is established.

16. In an affidavit filed on behalf of the Association in this case the objects of Skal Clubs are clearly set out. Skal Clubs are established in various countries in the world, including Hong Kong. Membership of a club is available to persons actively engaged in the promotion or sale of travel, and the purpose of the clubs includes the fostering of fellowship and a common purpose between the members of the tourist industry. And there are numerous clubs established all over the world.

17. We cannot say that the Board wrongly exercised this discretion in rejecting the applicant's application. The Hong Kong Tourist Association owe a duty not only to individual members of the public but to all travel agencies and tourist associations. An ordinary traveller, on seeing the word 'Skal' as part of the name of the applicant might think that it is a travel agency backed by or part of the internationally known Skal Clubs. The same applies to other travel agencies. The inclusion of the word 'Skal' may well be considered to confer on the applicant an advantage which they should not have. If that is so it would, we think, not be a wrong exercise of the discretion of the Board in view of the objects of their Association. We therefore find against the applicant on the first point.

18. The second point is that the Board in effect accepted the applicant as a member of the Association by asking for and accepting a fee of $300.

19. Mr. van Buuren pointed out that rule 3 of the Hong Kong Tourist Association Rules makes provision for a membership fee. The rules provide for no other fee. His argument is that by receiving the membership fee the Board must be held to have approved the membership of the applicant. We do not agree. The fee paid by the applicant was paid by them and received by the Board in anticipation that membership would be granted. It was not, and the fee was returned. There is nothing in this point.

20. In the event this application is dismissed with costs.

Representation:

Van Buuren (H.H. Lau & Co.) for applicant.

Mills-Owens (J.S.M.) for respondent.

(1) 122 E.R. 718

(2) (1968) A.C. 997.