Hong Kong Rifle Association v. Hong Kong Shooting Association

HCAL21/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 21 OF 2012

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D E C I S I O N

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Introduction

1.This application for leave to commence judicial review represents another episode of the long-standing feud between HKRA and HKSA.

2.Incorporated in 1994, HKSA is the sole governing body for the shooting sport in Hong Kong.  HKRA, a shooting organization, has a history going back to the 1920s.  Its secretary was one of the two first subscribers of HKSA.  It had been a member of HKSA since then until 2006.

3.In April 2006, HKRA ceased to be a member of HKSA because it failed to pay subscription fees.  HKRA then sought to be reinstated as a member, which was refused.  Litigation then followed.  In HCMP2316/2006, Saunders J held that HKSA must reconsider HKRA’s application for reinstatement : see [2007] 4 HKLRD 121.  On appeal (CACV14/2008), the Court of Appeal upheld the decision : see [2009] 2 HKLRD 249.  I will refer to those proceedings as “the Private Law Proceedings” below.

4.HKSA then reconsidered and rejected HKRA’s application on 13 February 2009.  Between March 2010 and July 2011, HKRA made three applications for membership, which were all rejected.  HKRA did not take any legal action to challenge those decisions.

5.On 28 November 2011, HKRA applied for the fifth time, seeking reinstatement of membership with HKSA.  On 15 December 2011, the council of HKSA held a meeting and considered the application.  On 19 December 2011, HKSA informed HKRA that its application for reinstatement was rejected (“the Decision”).

6.HKRA now applies for leave to commence judicial review against the Decision.

Decision not amenable to judicial review

7.The loss of membership with HKSA dealt a hard blow to HKRA.  While being a member of HKSA, HKRA had been using the roof top situated at Kau Wah Keng High Level Service Reservoir, No 1, Kau Wah Keng, Kwai Chung, New Territories (“the Area”) for organizing shooting sport under short term tenancies granted by the government.  Now that it had ceased to be a member of HKSA, the government, pursuant to the relevant policy, would no longer grant HKRA any short term tenancy to use the Area.

8.However much one may sympathize with HKRA’s predicament, I do not think it can challenge the Decision by way of judicial review for the simple reason that it is not a public law decision amenable to judicial review.

9.HKSA is a company limited by guarantee.  It derives its powers and functions from its memorandum and articles of association, as a matter of private law.  That includes the power to reinstate a member (article 15) and to admit a new member (article 15).  Its relationship with its members is consensual, which does not involve any public law element. The fact that HKSA is the sole governing body of the shooting sport in Hong Kong does not alter the position.

10.The leading authority is R v Jockey Club, ex parte Aga Khan [1993] 1 WLR 909.  There, the Jockey Club, incorporated by Royal Charter, exercised responsibility for the organisation and control of racing and training activities in Great Britain.  The club’s powers and duties did not derive from primary or secondary legislation and its dominance was principally maintained through the issue of licences and permits by which the club’s stewards entered into contracts with racecourse managers, owners, trainers and jockeys, who were required to submit to a comprehensive regulatory code, the Rules of Racing, published by the stewards for the conduct of the sport.  It was common ground that the applicant, a racehorse owner registered with the club, had agreed to be bound by such rules.  In 1989 the applicant’s filly was routinely examined after she had won a major race and a sample of her urine was said to contain a substance prohibited by the rules. At a subsequent inquiry the club’s disciplinary committee concluded that such a substance was present in her urine and in consequence, as prescribed by the rules, disqualified the filly and fined her trainer.  The applicant sought leave to move for judicial review by way of an order of certiorari to quash the committee’s decision.  On the grant of leave trial was directed of a preliminary question whether the decision was amenable to judicial review.  The Divisional Court determined that question against the applicant and dismissed his application.  The Court of Appeal dismissed the applicant’s appeal, holding that although the Jockey Club exercised dominant control over racing activities in Great Britain its powers and duties were in no sense governmental but derived from the contractual relationship between the club and those agreeing to be bound by the Rules of Racing; that such powers gave rise to private rights enforceable by private action in which effective relief by way of declaration, injunction and damages was available; and that, accordingly, the club’s decision was not amenable to judicial review.

11.After reviewing the authorities, Sir Thomas Bingham MR (as he then was) said at p 923F–H :

“ I have little hesitation in accepting the applicant’s contention that the Jockey Club effectively regulates a significant national activity, exercising powers which affect the public and are exercised in the interest of the public. I am willing to accept that if the Jockey Club did not regulate this activity the government would probably be driven to create a public body to do so.

But the Jockey Club is not in its origin, its history, its constitution or (least of all) its membership a public body.  While the grant of a Royal Charter was no doubt a mark of official approval, this did not in any way alter its essential nature, functions or standing.”

12.Hoffmann LJ (as he then was) said at p 931B–D :

“ In the case of the Jockey Club, however, there is no public source for any of its powers. It operates directly or indirectly by consent. The power is direct against those who have agreed to be bound by the Rules of Racing and indirect against those who have not. So for example, the club has power under rule 2(iv) to exclude persons not bound by the Rules of Racing from premises which it licenses, such as racecourses or training stables, and the power can be effectively exercised because the occupiers of those premises have agreed not to admit anyone whom the club has decided to exclude.”

And later at p 932H :

“ All this leaves is the fact that the Jockey Club has power. But the mere fact of power, even over a substantial area of economic activity, is not enough. In a mixed economy, power may be private as well as public. Private power may affect the public interest and the livelihoods of many individuals. But that does not subject it to the rules of public law. If control is needed, it must be found in the law of contract …”

13.These judicial statements apply to the present case with equal force.

14.Ms Koo, counsel for HKRA, placed heavy reliance on R (Beer (trading as Hammer Trout Farm)) v Hampshire Farmers’ Markets Ltd [2004] 1 WLR 233. There, the county council established farmers’ markets in 1999 pursuant to the Local Government and Housing Act 1989.  In 2001, the council decided to hand over the running of the markets to the stallholders, and set up a company limited by guarantee to take over the markets; the registered office was the council’s office initially; the council’s employee was appointed as the company secretary and subsequently, as one of the directors.  In substance, it acquired from the council the assets and goodwill of the farmers’ markets business.  It used sites owned by local councils free of charge.  It was conceded that if the decision to refuse the applicant’s application was made before the incorporation of the respondent, it would have been amenable to judicial review.  Dyson LJ noted that it was clear from the “market cases” that decisions affecting the right of access to certain types of market, in particular, a public market, may have a sufficient public element; and in that case, the markets were public markets in that they were held on publicly owned land to which the public had access.  He stressed that what was critical was whether the market was one to which the public had the right of access.  He relied further on the facts that the respondent owed its existence to the council; it stepped into the shoes of the council; from the date of its incorporation until it started operation, the council assisted the company in a number of respects as mentioned above.

15.However, as rightly submitted by Mr Lam, counsel for HKSA, none of those special features in the Beer case appears here. It can and should be distinguished.  Ms Koo’s reliance on it is misplaced.

16.Ms Koo contended that the government had delegated the power to HKSA in choosing who could use the Area to operate a shooting range.  Hence the Decision has a public consequence.  I disagree.  Factually, the government has never delegated such authority to HKSA or indeed anybody at all.  The grant or termination of the short term tenancy for the Area is a matter of private law between the government as landlord and HKRA or any shooting club as tenant.

17.Ms Koo argued that if, after losing its membership with HKSA under the Decision, HKRA is not allowed to use the Area, the Area as a shooting range will be lost to the public.  Hence the Decision affects the public.  But the evidence is that other interested shooting clubs have already expressed interest in using the Area.  The Area as a shooting range will not be lost to the public at all.

18.Ms Koo also relied on the fact that HKSA is a non-profit making body.  The short answer is that such status does not turn it into a public body or the Decision a public law decision.

19.Lastly, the present application for judicial review is entirely inconsistent with HKRA’s earlier position taken in the Private Law Proceedings.  There, HKRA challenged HKSA’s earlier decision of refusing reinstatement in 2006 by way of private law.  The courts also applied private law to deal with the parties’ dispute there and then.  HKRA has failed to give any satisfactory reason why in 2012, it chose to challenge the Decision, which is just another refusal to reinstate membership, by way of judicial review.

Conclusion

20.For the above reasons, I refuse to grant leave.

21.Costs should follow the event.  HKRA is ordered to pay HKSA costs, to be taxed if not agreed.

Ms Koo Yeuk Lan, instructed by John Ku & Co, for the applicant

Mr Paul Lam, instructed by Mayer Brown JSM, for the respondent

Please refer to CACV174/2012 for the relevant appeal(s) to the Court of Appeal.