RE LAW WAI LUN ALAN

HCAL 37/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATION LAW LIST

NO 37 OF 2014

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Introduction

1.  The applicant is the shareholder of one restaurant known as “Petite Oyster” situated at Ground floor, 44 Sai Street, Sheung Wan (the Premises).  The Premises are located on a commercial and residential building. 

2.  In December 2012, Petite Oyster applied to both the Food and Environmental Hygiene Department and the Liquor Licensing Board for the issue of a General Restaurant License and a Liquor License respectively.  The Premises were issued with a General Restaurant License in May 2013.  

3.  The Liquor Licensing Board consulted the Police which objected to the application on the grounds that (i) the area was very quiet at night with mostly elderly residents and (ii) the applicant was not a fit and proper person because of his drink driving record.

4.  Objections were also received from members of the District Council, Owners’ Corporation of a nearby building and 145 residents in the neighbourhood.  Despite the objections, the Liquor Licensing Board decided to issue a 9-month liquor license with various conditions attached. 

5.  In June 2013, dissatisfied with the Liquor Licensing Board’s decision, residents then lodged an appeal with the Municipal Services Appeals Board (The Appeal Board).  The Appeal Board heard their appeal on 18 October 2013 and announced its decision on 9 January 2014.

6.  The Appeal Board decided that the location of the Premises was not suitable for selling or supplying liquor and hence revoked the Liquor License with the effect from the date of its decision. 

The Judicial Review

7.  Dissatisfied with the decision, the applicant sought leave to judicial review the Appeal Board’s decision.

8.  The grounds put forward can be summarized as follows:

(1) The Appeal Board failed to take into account the following relevant considerations:

(a) the source and severity of noise disturbances;

(b)the Premises were used as a restaurant and not a bar;

(c) with suitable condition, the level of noises and disturbances could be minimised.  

(2) The Appeal Board took into irrelevant consideration, namely the existence of a licensed premises at Sai Street.  

(3) The Appeal Board erred in finding the nature of the neighbourhood. 

(4) The Appeal Board failed to give adequate reasons.

Discussion

9.  The Appeal Board hearing took place on 18 October 2013, and lasted over 1 hour and 15 minutes.  From the notes of the hearing, one can see among those in attendance were two authorized representatives of the residents (residents of 44, 45, 46, 48, 50, 51 and 54 of Sai Street and other streets and buildings), two representatives of Petite Oyster, and three objectors.  Issues concerning noises, location and the number of premises selling liquors around the area had been extensively canvassed in the hearing. 

10.  In respect of ground (1), it seems clear that the Appeal Board was aware of the business nature of the Premises, ie a restaurant and not a bar.  In paragraph 5 of its decision, the Appeal Board mentioned specifically the use of the Premises as a restaurant.

11.  During the hearing and in response to an enquiry, the applicant informed the Chairman of the Appeal Board that the Premises could accommodate around 26 people.  Further, photographs depicting customers smoking and eating outside the Premises were also submitted by one objector, a Dr Christian Chan. It is therefore highly unlikely that the Appeal Board was not aware of the true business nature of the restaurant. 

12.  Dr Chan mentioned to the Appeal Board that he and his elderly father had been awaken by noise from the Premises in the middle of the night.  In addition to Dr Chan, a Mr John Batten who objected to the granting of Liquor License also made representations before the Appeal Board about changes made to Sai Street. 

13.  Another objector, a Mr FK Chan, himself an architect by occupation, informed the Appeal Board the situation of Sai Street and in particular his emphasis on the narrowness of Sai Street. 

14.  The Appeal Board was also made aware of objections raised by other residents through their authorised representatives.  Their views were summarized in paragraph 12 of the Appeal Board’s decision to which I shall not repeat. 

15.  After taking into account a host of factors which had been encapsulated in paragraph 13 of its decision, the Appeal Board came to the conclusion that it was inappropriate to issue any more Liquor Licenses to any establishment in Sai Street.  

16.  It was submitted that unless the Premises had generated unacceptable level of noises and disturbances, there was no reason to refuse to issue the Liquor License simply because of the general quietness or tranquillity of Sai Street. 

17.  In the present case, there was evidence of unacceptable level of noises and disturbances before the Appeal Board, according to most of the residents and objectors present in the hearing.  In addition, the Police reported that they had also received two complaints against the Premises and a further five complaints against the other restaurant in Sai Street.  In that regard, the opening of premises selling liquor had already adversely affected the residents. It was therefore the view of the Appeal Board that Sai Street had had enough premises selling and supplying liquors and that the imposition of conditions albeit stringent could no longer be desirable or acceptable.  This is a decision that the Appeal Board was entitled to reach. 

18.  It was submitted in ground (2) that the Appeal Board erred in taking into consideration of the existence of another licensed premises.  In my view, it is clear that the Appeal Board did not wish the situation to be further deteriorated and to limit the extent of the noise problem.  It is a factor that the Appeal Board can take into consideration. 

19.  The function of this court in a judicial review is not to review the merit of the Liquor License application.  It is however clear that the Appeal Board had given due consideration to representations made by all stakeholders.  At the end of the day, the undisputable truth is that the Appeal Board simply could not please everyone.

20.  It was submitted in ground (3) that the Appeal Board was wrong to rely on the fact that most residents of Sai Street were elderly residents and that there was practically no noise problem.  In that regard, the applicant attempted to adduce fresh evidence, ie letters and petitions from other residents to support his contention.  In judicial review hearing, the court will look at new evidence only in exceptional circumstance.  The applicant was fully aware that one of the objections raised by the residents, even at the Liquor Licensing Board hearing, was that there were many elderly and children living in the area (See paragraph 10(a) and (b) of the Appeal Board’s decision), yet the applicant chose not to avail himself of the opportunity at the Appeal Board’s hearing by producing any of these letters and petitions.  Further no explanation had been given by the applicant as to their late submission and therefore I decline to take into account any of these new evidence.  In my view, there is no exceptional circumstance in this case. 

21.  In his last ground, the applicant also submitted that the reasons given by the Appeal Board were too few and brief.  The reasons given might be a little brief but what had been discussed and deliberated could clearly be discernible from the decision in its proper context.  After all, the Appeal Board’s decision was no more than an administrative one. 

22.  In conclusion, leave to apply for judicial review is therefore refused.