Gurung Tika Maya v. The Commissioner of Police

HCAL 143/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 143 OF 2008

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BETWEEN

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Before: Hon Reyes J in Court

Date of Hearing: 15 January 2009

Date of Decision: 15 January 2009

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D E C I S I O N

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I.  INTRODUCTION

1.Beijing Club is a club and restaurant in Wellington Street.  Ms. Gurung is the Club’s manager.  The Club carries out its business through Cheerful Raise.  The Club also maintains Asher Model as its management company.

2.On 28 October 2007 the police inspected the Club.  They found that it was in breach of licensing conditions by (among other reasons) selling and supplying liquor in the balcony of the Club’s 3rd floor.  The police sent 2 warning letters dated 5 November 2007 to the Club, referring to the breach of the liquor selling restriction in the Club’s licence.

3.Ms. Gurung seeks judicial review against the refusal of the police to withdraw the warning letters.  I have to decide whether to grant leave for judicial review.

II.  BACKGROUND

4.The Club’s solicitors pressed the police for particulars of the evidence relied on for the finding that the Club had breached its licence conditions.

5.By letter dated 25 January 2008, the police responded:-

“Since it is not in our practice to release copies of Police notebooks you are advised that a synopsis of WPC 4965’s notebook is as follows:-

i.  At 00.15 hours on 28th October 2007 a licence check was conducted at the Beijing Club with the District Anti Triad Squad (DATS) and that the check was completed at 01.05 hours the same day;

ii.  ....

iii.  That during the course of the same inspection customers were observed seated (with drinks) at table on the 3rd floor balcony of the premises and that, after enquiries with a male customer sitting in the area, it was established that a female staff member had been serving drinks within the outside seated accommodation in breach of license conditions;

iv.  That upon approaching and advising the licensee (Ms. Tika Maya GURUNG) of this breach of condition, she admitted the breach and apologized for the irregularities.  She was then advised that a written warning should be issued;

v.  ....

vi.  That having been informed of the warnings and having signed the Visit Record, Ms. GURUNG requested a photocopy of the record and was, accordingly, provided with one.”

6.By letter dated 22 February 2008, in reply to further correspondence from the Club’s solicitors, the police wrote:-

“iii.  With respect to the queries that you have raised concerning the service of drinks in the outside seated area (OSA), you are advised that 6 members of the MESU [Miscellaneous Enquiries Sub-Unit] were present at the time and that PC 415 was the officer who conducted the enquiries with customers.  You should also note that, with confirmation from both a customer and the licensee that drinks had been served by Beijing Club staff in the OSA, it was decided that Ms. GURUNG’s admission alone was sufficient for the purpose of issuing a warning, and that obtaining customer particulars was unnecessary given the potential disturbance to customers and the adverse impact that it may have had on patronage to the club.”

7.Following more correspondence from the Club’s solicitors, the police responded on 8 April 2008:-

“b)  With respect to the individual points you have raised:-

i.  The operation and the enquiries were conducted between 00.15 hours and 01.05 hours on the 28^th October 2007;

ii.  Ms. GURUNG was not in the immediate vicinity at the time that PC 415 made enquiries with the male customer and it is unlikely that she would have overheard the content of the conversation;

iii.  PC 415 having observed alcoholic drinks on a table situated in the outside seating area (OSA) then approached a male customers sitting at the table and made enquiries as to whether the drinks had been purchased at the bar and then brought to the OSA.  He was advised that this was not the case and that the drinks had been ordered and served by a member of staff to the OSA.  The exact wording of the customer was not recorded;

iv.  As was indicated in paragraph (iii) of my letter dated 22nd February 2008 ‘it was decided that Ms. GURUNG’s admission alone was sufficient for the purpose of issuing a warning, and that obtaining customer particulars was unnecessary given the potential disturbance to customers and the adverse impact that it may have had on patronage to the club.’  You are advised, therefore, that the details of the male customer were not recorded;

c)  Ms. GURUNG’s admission was made in the presence of a number of MESU officers, including Senior Inspector CARROLL, and also in the presence of your client Mr. WONG Hei-yam;

d)  Upon it being pointed out by Police that the sale of liquor was taking place in the OSA Ms. GURUNG replied by saying ‘I’m sorry’.  Shortly thereafter she signed the Police Visit Record indicating that she had been informed of the breaches observed;

e)  Given that Ms. GURUNG was not being arrested or prosecuted for the breaches that had been observed no caution was administered prior to the warning being given; and

f)  You are once again advised [as per paragraph 3(d) of my letter dated 25 January 2008] that it is not our practice to release copies of Police notebooks and for this reason you should refer to the synopsis that was provided in that letter.”

8.Ms. Gurung’s case is that her reply of “I’m sorry” was “simply made in response to a sudden accusation by the police officers”.  Ms. Gurung says that she did not intend to admit anything by her remark.

9.In the course of its lengthy correspondence with the police, the Club’s solicitors repeatedly complained about the deployment of Senior Inspector Carroll in the MESU carrying out the inspection.  This is because Asher Model has an ongoing suit in the District Court against Mr. Carroll for alleged misfeasance in public office.

III.  DISCUSSION

10.Ms. Gurung argues as follows:-

(1)  PC 415 did not observe how or by whom drinks had been brought to the table in the balcony.  Nor did he observe drinks actually being served in the balcony by Club staff.

(2)  There is no record of the enquiries made of and the details provided by the “male customer” whom the police interviewed about the drinks in the balcony.

(3)  Ms. Gurung had not been cautioned by the police.

(4)  The sale of liquor without a licence is a criminal offence under Dutiable Commodities Ordinance (Cap.109) s.46(1).  To substantiate the breach of the Club’s liquor licence for the purposes of a warning letter, there must be evidence which would have a probative value “in the criminal law context”.

(5)  The police’s evidence was hearsay and could have no probative value at all.  The “I’m sorry” remark by Ms. Gurung, not having been made under caution, was of no value as an admission.

(6)  The police evidence would not stand in a criminal court and so the 2 warning letters are unsupported by any cogent evidence.

(7)  In the premises, the police refusal to withdraw the warning letters is irrational.  This is especially so because, unless withdrawn, the warning letters may be employed to the Club’s detriment in future applications relating to the Club’s license.

11.I am not persuaded that there is an arguable case with a reasonable prospect of success.

12.First, it is not for judicial review to determine, in advance of any deployment of the same by the police in a court or other forum, whether evidence is sufficient to support a criminal prosecution.

13.The police may or may not refer to the warning letters in future applications involving the Club.  Such proceedings may be for extension of the Club’s liquor licence or any other type of hearing.

14.In such proceedings, the Club may challenge the admissibility and weight of any evidence (including the warning letters and supporting material) relied on by the police.  The Club may do so on any grounds it deems appropriate.  The court or forum hearing the matter will then rule as it sees fit upon the Club’s objections and on the relevance of the whole of any admissible evidence.  Such ruling may or may not be susceptible to subsequent review or appeal.

15.Here the Court is being asked to adjudicate in a vacuum upon the weight and credibility to be ascribed to the warning letters and the evidence said to be backing it up. 

16.It is true that the warning letters have previously been deployed by the police in opposition to an extension of the Club’s liquor licence for 12 months.  That opposition was unsuccessful.  The licence was renewed for 12 months.  Currently, the police are not seeking to use the warning letters in any relevant proceedings.  On the contrary, no relevant proceedings are afoot or threatened.

17.In the premises, the Court cannot and should not determine pre-emptively in the abstract that the warning letters are devoid of probative value for the purposes of any future proceedings.

18.The Court is being asked to anticipate all possible contexts (if any) in which the warning letters may be used.

19.The Court is being asked to assume, on the strength of correspondence between the police and the Club’s solicitors, that the police have no worthwhile evidence at all in any context.  For example, even ignoring whatever Ms. Gurung might have said, the Court is being asked to ignore the possibility of some MESU officers present during the inspection being able to give relevant cogent evidence, with or without assistance from what had been jotted down in WPC 4965’s notebook. 

20.The Court is being asked to conclude that, because the warning letters cannot meet the standard of evidence in a criminal trial, the police should be compelled to withdraw the letters altogether. 

21.To rule thus would be a purely hypothetical and pointless exercise.

22.Second, I do not see the relevance of a criminal standard of proof to the decision to issue warning letters in relation to licensing conditions. 

23.In determining whether or not to issue such letters, the police do not function as a court of law. 

24.The police took the view, in light of what the MESU inspectors saw, the evidence of a male customer, and what Ms. Gurung said, that warning letters were justified.  In issuing the letters, the police were performing an administrative function for which considerations of a probative burden and the rules of evidence governing Court criminal proceedings would not typically be apposite.

25.Third, as the police pointed out, since Ms. Gurung was neither being arrested nor prosecuted, there was no reason to caution her.  On the contrary, the police were simply telling her the results of their inspection.  Whatever Ms. Gurung said and whatever she might have meant by what she said, I do not think that it can be suggested that the police somehow failed in their duty by failing first to caution her.

26.Fourth, I have been referred to the case of R(U) v. Commissioner of Police of the Metropolis [2003]  897 1 WLR (QB).  I have not found the case helpful. 

27.There, on interview by the police, 2 teenagers admitted indecent assault in return for only receiving final warnings.  Neither was told by the police that the result of such final warnings was that both would be included in a register of sex offenders accessible by the Police National Computer.  Judicial review of the warnings was allowed.

28.In the latter case, admissions were obtained and final warnings issued without the teenagers being fully informed of the adverse consequences resulting directly therefrom.  Here warnings have been issued as a result of the police taking a view on the results of an inspection.  Whether, how and with what effect (adverse or otherwise) the warning letters are to be used in the future remains speculative.

IV.  CONCLUSION

29.Leave to apply for judicial review is refused.

Mr Danny Ng Pak Kin, instructed by Messrs K M Cheung & Co., for the Applicant