Chan Yat-san and Others v. Attorney General

HCMP000265/1976

IN THE HIGH COURT OF HONG KONG

MISCELLANEOUS PROCEEDINGS NO. 265 OF 1976

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MISCELLANEOUS PROCEEDINGS NO. 266 OF 1976

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Coram: Trainor and Cons, JJ.

Date of Judgment: 31 July, 1976

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JUDGMENT

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Judgment of the Court ...(illegible) J.

1. There are two applications before the Court: one, an application for an order of certiorari and the other for an order of mandamus. The applicants in each case are members of a club known as the Pearl Island Club and they are acting on behalf of themselves and all the members of the Club. The applications arise as follows.

2. On the 12th January this year, the Club's solicitors applied to the Commissioner of Police for a licence under sec.13(2) of the Gambling Ordinance to use the premises for the playing of mahjong and tin kau. On the 20th February this year, the Commissioner refused the application and the applicants now apply for an order of certiorari directed to the Commissioner of Police to remove into this Court and quash the refusal contained in that letter. They also seek an order of mandamus directed to the Commissioner commanding him to consider and determine according to law the application that was made on the 12th January in the letter from the Club's solicitors.

3. These cases have a history commencing as far back as the 3rd December 1973. On that date the solicitors for the Club applied to the Commissioner of Police for a licence under sec.13(2) of the Gambling Ordinance for the purpose of providing facilities for its members for playing "tin kau or any other game in which mahjong tiles, dominoes or cards are used". In that letter they gave reasons supporting their application. Those reasons included that membership of the Club was limited to the directors and staff of the company and their relatives as well as bona fide residents of the premises within the property that the Club users were permitted by the current grant; that the proposed amenities would be part only of the Club's activities; that the premises have been decorated for the use of the Club and at considerable expense and finally that the Commissioner had issued many other licences under sec.13 in respect of premises open to the general public.

4. On the 4th March 1974, the Commissioner replied stating that in exercise of his discretion he had decided not to grant a licence. He gave no reasons.

5. On the 11th April 1974 the Club's solicitors again wrote to the Commissioner asking him to reconsider his decision. In that letter they repeated many reasons why the Club should be granted a licence and stressed the fact that the Club was non-profit making. In the letter the solicitors also requested the Commissioner to state his reasons for objecting to the Club's application. That letter was followed by another on the 6th May 1974 in which it was pointed out that the proposed facilities were purely for members and that no fee would be charged for the playing of the proposed games either on entry to the Club or for the use of the premises, nor would the Club charge any fee for the use of mahjong tiles, cards or other equipment which the members might use. It also pointed out that the Club would have no objection to the licence being endorsed with certain restrictions that the writer referred to in that letter. However the Commissioner by a letter dated the 17th May 1974 stated that his earlier decision remained unchanged. Again he gave no reasons.

6. On the 21st January 1975 the applicants who are now before the Court commenced proceedings against the Attorney General in which they sought inter alia a Declaration that the decision of the Commissioner contained in his letters of the 4th March and the 17th May 1974 to the plaintiffs' solicitors refusing to grant a licence had been made in breach of the duty of the Commissioner to act fairly and therefore invalid. On the 31st July 1975, Huggins, J. made that Declaration.

7. On the 27th August 1975 the Club's solicitors again wrote to the Commissioner of Police. In that letter they applied for a licence for the Club in terms similar to those in their first application. They referred to the judgment of Huggins, J. and enclosed a copy with their application. On the 19th December 1975 the Commissioner replied and said that he had considered the renewed application but in exercise of his discretion he had decided not to grant a common gaming house licence to the Club. On the 12th January 1976 the Club's solicitors made yet a third application for a licence. The Commissioner of Police refused it on the 20th February.

8. Both applications to this Court are based on the ground that the Commissioner did not exercise his discretionary power fairly. An affirmation in support of the present application of one CHAN Yat-san was filed. In this affirmation the deponent reviewed the history of the case that we have outlined. In addition he gave an extensive background to the Club, how it was formed and exhibited a copy of the constitution. Mr. Swaine, Queen's Counsel, who appeared for the applicants opened this affirmation and dealt with it in extenso. Mr. Johnson who appeared for the respondent objected to a considerable amount of that affirmation being considered by the Court. He argued that an order of certiorari is a review and not an appeal and that there is a limit as to what may be considered. He pointed out that formerly courts only looked at the record but conceded that that is not now enough where there is a non-speaking record. We do not intend to dwell on this matter. We think the affirmation and all its contents ought to be available to the Court to enable it to decide on the circumstances of this case as it is only by doing so that the Court can decide whether or not the Commissioner of Police acted fairly. This is now treated as a question of jurisdiction, and it is well established that where a person or body exercising a function similar to that of the Commissioner acts without jurisdiction, a court reviewing his action can go behind the record and examine affidavits filed in support of the application that would tend to show that that person or body went outside his or its jurisdiction. In the case of R. v. Southampton Justices⁽¹⁾ Lord Denning M.R. said at 1078:

"It was suggested that there was no error of law here on the face of the record. The error only appears from the affidavits which have been produced to this court. Are they admissible to show the error? I think they are admissible on the ground that they go to show that the justices went outside their jurisdiction. In R. v. Northumberland Compensation Appeal Tribunal, ex parte Shaw (1952) 1 All E.R. 122, we considered whether affidavit evidence was admissible. I said (131):

The Master of the Rolls then goes on to say:

"This case comes within the category of 'want of jurisdiction'. The scope of this category is very wide, as is shown by Anisminic Ltd. v. Foreign Compensation Commission (1969) 1 All E.R. 208, where Lord Pearce said:

9. The law that we have to apply in these circumstances is well settled. A person who seeks a privilege - which the Club does in the present case - has no right to be given an explanation if that privilege is refused. If an explanation is given the Court will enquire into its validity. If no explanation is given the Court will do no more than ensure that the petitioner has been dealt with fairly. This generally involves two principles. Firstly, that the decision maker should not be guided by irrelevant considerations: Breen v. Amalgamated Engineering Union and Others⁽²⁾; and secondly, that the decision maker should not abuse the powers vested in him, as for example, by using them to cloak some ulterior purpose: Reg. v. Governor of Brixton Prison ex parte Soblen ⁽³⁾. The Club suggests that the present circumstances lead irresistibly to the conclusion that the Commissioner has transgressed the first principle.

10. The judgment given in the first proceedings that the Club brought before this Court is reported in 1975 H.K.L.R. at 503. The learned judge made two decisions:

Neither of those decisions was challenged by appeal. Nor has the Commissioner in refusing the subsequent reapplications of the Club, nor in the present proceedings indicated in any way whatsoever that he no longer relies upon this fact. The Club therefore asks us to draw the conclusion that he still does. This would mean that the Commissioner, well knowing what the law required of him on a reconsideration of the application, has deliberately ignored that requirement. We do not say that this is an impossibility. We do say, however, that any court would be slow to draw the conclusion that a responsible authority has acted so irresponsibly without some indication more than mere silence in circumstances where generally speaking silence is acceptable.

11. There is another matter that we must consider. It arises from the more recent history of this case. On the 12th January this year the Club's solicitors made the latest application. Almost immediately, i.e. on the 17th January the Commissioner wrote back asking three questions:

12. In due course the solicitors replied. They wrote that the Club did not intend to make any charge in either of the ways mentioned and that although the present number of Club members was limited it was intended to enlarge the membership according to the Club's constitution of which the Commissioner already had a copy. The Commissioner too already knew the answers to the questions he had just put. They were contained in the previous correspondence. It could not be that he was unaware of that correspondence. He had referred to it expressly at the beginning of his letter.

13. What conclusions then are we to draw? The Club suggests two possibilities. Either the Commissioner was once again relying on irrelevant considerations; failure to make charges should not prejudice the Club's chances; licences have been granted to many establishments that did make charges; and restriction on members must surely be to the Club's advantage. Alternatively the Commissioner's questions were capricious, a form of window dressing in case it should later be suggested that he had not given the renewed application consideration at all. We should add that in their latest application the Club's solicitors had threatened legal proceedings if the Commissioner's answer should not prove to their satisfaction. Once again we would be slow to draw the conclusion that the Commissioner' acted in a deliberately irresponsible manner. What did prompt his questions has given us considerable thought. But in the end we have concluded that it is not beyond the bounds of possibility that those questions did no more than seek a clarification of matters raised in the latest application. That application was different from those that had gone before. It deliberately limited the request to the playing of mahjong and tin kau. This was presumably because in the earlier court proceedings the playing of card games had been held to be a valid objection. Also the solicitors had thought fit expressly to mention that the playing of mahjong and tin kau would be restricted to members of the Club playing within Club premises.

14. It is said that whatever the reason for the questions the answers given by the Club must be taken to have been satisfactory, again showing that the Commissioner was influenced by some other matter or was otherwise acting in bad faith. We do not agree. We cannot put ourselves in the position of the Commissioner to say what is or is not satisfactory. Although we do note in passing that the constitution of the Club provides for an almost unlimited membership. It extends to "all friends, relatives and staff of the shareholders of Pearl Island Development Co. who are in good conduct and willing to comply with the provisions of the constitution .... regardless of sex and nationality" (Clause 4 of the Constitution). This provision is not accurately set out in the affidavit sworn on behalf of the Club or in the letters to the Commissioner. There is also some confusion as to the name of the parent company. It is referred to by more than one in the documents put before us. However we are assured that there is in fact only one company whichever is the correct name. But the important point is that the shares are public listed; i.e. open to sale and purchase upon the public stock exchanges. The only practical limit to membership would be the scrutiny of the Club Committee. It is difficult to forecast how effective that might be.

15. These are the matters we have considered. We are not persuaded that they sow the substantial and disquieting doubts (Soblen's case p.308) necessary to warrant our interference. The present applications for orders of certiorari and mandamus are refused.

16. ...(illegible)

Representation:

J. Swaine, Q.C., and M. Bunting (Deacons) for applicants.

R.J. Johnson, Crown Counsel, for respondent.

(1) [1975] 2 All E.R. 1073

(2) [1971] 2 Q.B. 175 at 190

(3) [1963] 2 Q.B. 243 at 302