HAPPY PACIFIC LTD. AND ANOTHER v. COMMISSIONER OF POLICE

HCAL 115/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 115 OF 1999

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J U D G M E N T

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1. The applications which now fall to be considered follow leave which has been granted to the applicants to apply for judicial review. On 1 September 1999 the respondent communicated three decisions : not to renew a massage establishment licence; to revoke the licence; and to refuse an application to transfer the licence from the licensee to the second applicant. The applicants are, respectively, the company which owns or effectively operates the massage establishment, and the lady to whom it was intended to transfer the licence. The licensee has not joined in the application for judicial review. The application for leave to apply for judicial review did not seek to challenge the validity of the decisions not to renew the licence, nor the decision to revoke the licence. It was restricted to a challenge of the decision not to transfer the licence to the second applicant.

2. Leave to apply for judicial review of that decision was granted by Cheung J on 23 September 1999.

3. This judgment concerns three applications :

1. an application by the respondent to set aside leave. It is said that the statutory avenue of appeal has not been used and that there exists in the circumstances no good cause for entertaining an application for judicial review; and it is said that the applicants' case is in any event hopeless;

2. an application by both applicants for interim relief, namely, some order from the court by which the former licence may be kept alive until determination of the substantive issues in the case; and

3. an application to amend the application for leave to include a claim for damages.

Background

4. The first applicant operated a massage establishment called The Fair Sauna House in Temple Street, Kowloon. At all material times, the licensee was a Madam Yiu Choi Wan ("Madam Yiu"). In July 1997, Madam Yiu obtained a renewal of the massage establishment licence; so it was to expire in July 1998. However, in September and October 1997, the sauna house fell upon troubled times because the police had mounted an operation, and it was discovered that women working there were offering sexual services, and four persons were charged in connection with managing a vice establishment. Madam Yiu was arrested, but was neither charged nor prosecuted.

5. On 3 April 1998, Madam Yiu applied to the respondent for the transfer of her licence to the second applicant, Madam Wai Siu Ching. Madam Wai was the assistant manageress there. I am told by Mr Dunn, for the applicants, that Madam Wai only came upon the scene that month. This application for transfer was made by solicitors acting on her behalf, and it is to be noted that throughout the relevant history of this matter, solicitors acted for the applicants in this case in dealings with the respondent. The arm of the respondent responsible for these applications was the Hong Kong Police Licensing Office.

6. On 18 May 1998, Madam Yiu also applied for a renewal of her licence which was due to expire in July 1998. The application for renewal was made because she (or the company operators) did not want an hiatus during which the premises might not be licensed between the expiry of the licence and the transfer to the second applicant. The respondent's reaction to these applications was that it would consider the application for transfer after determining the application for renewal, but that it would prefer to determine the application for renewal after the outcome of the pending court case, that is, the vice establishment case, was known.

7. The solicitors complained about that and said that they thought it unconscionable for Madam Yiu to remain as licensee when she was no longer willing to stay on - she wanted to spend time with her family, it was said - and they threatened judicial review. The response, on 3 July 1998, was that in the opinion of the respondent the premises were being run in a manner contrary to the public interest, because of a series of incidents detected on the premises, and they (the Licensing Office, that is) thought it wiser, before coming to a conclusion about the applications, to await the outcome of the court case. The letter went on, however :

" If you would prefer me to determine the application at this stage without awaiting the outcome of the court trial, I shall do so and reach my decision on the basis of the available information.

Contrary to what is suggested in your letter, it has never been the view of this Office that Madam YIU could not resign as a licensee, in fact she could withdraw her application for the renewal of her licence ... [indeed] she could submit her licence earlier for cancellation. ..."

The solicitors pressed the matter. They complained about the delay in processing the transfer application.

8. So, on 24 July 1998, the licensing office wrote to say that in relation to Madam Yiu's application for transfer, they were not satisfied that the transfer should be granted because they doubted, for reasons itemised in the letter, that the massage establishment would be operated in a manner consistent with the public interest. Therefore, notice was given of the respondent's intention not to allow the application for transfer of the licence.

9. The response came in September 1998 from the solicitors, saying that, on second thoughts, the original suggestion that the two applications should not be considered until the outcome of the pending trial was the better suggestion, and they asked the Licensing Office to "withhold determination of the two applications until the outcome of the criminal trial". That is then what happened.

10. For reasons that are not apparent to me, the pending trial did not come to fruition, or to a conclusion, until June 1999, when there was a conviction against one of the persons who had been arrested, for managing a vice establishment.

11. Before that, however, in May 1999, Madam Yiu was in a spot of bother, for she was charged with a breach of conditions of the licence. That happened yet again in June 1999. In May, the solicitors wrote to the respondent to say that Madam Yiu now had psychiatric problems, and there was enclosed a certificate from a psychiatrist who said that she was suffering anxiety with severe depression, and undergoing active psychiatric treatment. It is noteworthy that in this letter the solicitors said that they acted for the sauna house. It is clear from this letter and from others that the solicitors were acting at all times upon the instructions of the first applicant, as well as for the second applicant, and Madam Yiu.

12. The solicitors wrote the next day adding that in light of her conviction for breach of the licensing conditions and her mental problem, the company operating the sauna house had suspended Madam Yiu from duty and "replaced her temporarily with the intended licensee".

13. On 16 July 1999, the Licensing Office wrote to the solicitors and gave notice of its intention not to renew the licence. It cited the conviction for managing a vice establishment and also the two breaches of licensing conditions, each of which breach was to do with improper activities at the massage establishment. The respondent was therefore not satisfied that Madam Yiu was a fit and proper person to hold the massage establishment licence, and not satisfied that the premises were not being operated in a manner contrary to the public interest. As for the application to transfer the licence, the Licensing Office pointed out that it had given notice in July 1998 of the intention not to permit the transfer; and that intention was repeated.

14. Further representations were then made by the solicitors in late July 1999. It is clear, again, that they were then speaking on behalf of the company, the first applicant, saying how the company realized that there had been a shortfall in management and how they and the licensee had taken steps to invoke immediate remedial action; how the licensee was no longer fit to carry on her duties, and they proposed an interim solution, namely, a conditional renewal of the licence for a period of, say, three months. They pointed out how the livelihood of a significant number of employees was at stake.

15. On 9 August 1999, they wrote again saying that the second applicant had assumed the duties of licensee, and asked for provisional approval of the transfer of the licence.

16. On 1 September 1999, the respondent, in the form of the Licensing Office, communicated his decision. There were recited the prolonged police covert operations in 1997; breaches of conditions in 1998; and a breach of condition in 1999 for which Madam Yiu had been prosecuted and it was said that in the circumstances the respondent was not satisfied that Madam Yiu was a fit person to hold the licence, or that the premises were not being operated in a manner contrary to the public interest. The conviction for managing a vice establishment was cited, and the respondent said that in accordance with the provisions of sections 8(1)(a), (b), (c) and 8(2)(b) of the Massage Establishments Ordinance, Madam Yiu's licence was revoked, and the renewal and transfer applications were refused. The transfer application was referred to again in a separate paragraph, and the refusal of that application there mentioned. This letter concluded by drawing the attention of the solicitors to section 10 of that Ordinance, which provides for an appeal from such decisions to the Administrative Appeals Board ("the Board"). It said that should Madam Yiu be aggrieved, she could appeal.

17. On 2 September 1999, the first applicant ceased business at the sauna.

The institution of proceedings

18. On 3 September 1999, the solicitors wrote to the respondent saying that they had received instructions to institute proceedings for judicial review. Nothing was there said as to why the appeal avenue to the Board was not to be utilized. I pause to note that as long ago as August 1997, solicitors acting for the company had said to the Licensing Office, in respect of a proposed change to licensing conditions that :

"... our client will either exercise its rights of appeal under s. 10 Massage Establishments Ordinance, ... or will seek judicial review ... depending on the views of counsel as to which course of action will be more effective."

There can thus be no question but that from the outset the applicants knew of the right to appeal to the Board. There is no suggestion in the evidence, or in the submissions before me, to the contrary.

19. Now, what then happened was that an application was made ex parte for leave to apply for judicial review and leave was granted by Cheung J, ex parte, on 23 September 1999. Madam Yiu was not an applicant. Indeed there was not then, nor is there now, any challenge to the legality of the decision not to renew the licence, or of the decision to revoke it. The challenge is restricted to the :

"... decision of the Licensing Office of the Respondent as per the letter dated 1st September 1999 ... in so far as it relates to the refusal of application for transfer of the licence and the failure to consider the 2nd Applicant's application on her own merits to become a licensee."

What is sought is an order of certiorari to quash that decision, and an order of mandamus to oblige the respondent to consider the second applicant's application "on her own merits to become a licensee", and an order of mandamus to oblige the respondent to reconsider his decision to refuse the transfer.

20. The grounds of complaint are that the licensing office failed to give detailed consideration to the special circumstances underlying the transfer application; that there was a legitimate expectation on the part of the second applicant that her application to become a licensee would be considered separately; and that by making her application conditional upon renewal of Madam Yiu's licences, the respondent had treated the second applicant unfairly.

21. The first applicant says that it has sufficient interest in the application for judicial review, because the refusal to transfer the licence has prevented the first applicant from carrying on its business.

22. Once leave was granted, the applicants assumed, or were advised, wrongly, that the grant of leave automatically operated as a stay of the decisions about which complaint was made. That was wrong because leave only operates as a stay if the court so directs. The court had not so directed, and the applicants should have come to the court, on notice, to press the application. Operating under this misapprehension of the law, the applicants opened business again but, in due course, have closed down.

The present applications

23. There are before me three applications. The first is by the respondent asking that leave be set aside. The grounds of that application are, first, that there is an adequate alternative remedy to judicial review which has not been utilized, namely, the avenue of appeal to the Board, and that there is no justification for coming to this court for judicial review; and, further, it is said that the application for judicial review is, on its merits, quite hopeless, in particular, that there is no challenge to the revocation of the licence held by Madam Yiu, so that there is nothing now in respect of which there can be any transfer.

24. The second application is by the applicants. It is an application for interim relief. It asks for "a stay of enforcement of the decision of the respondent dated 1 September 1999 pending the determination of the notice of motion filed pursuant to the grant of leave".

25. The third application is by the applicants to amend the notice of application for leave to enable the first applicant to claim damages against the respondent. There is nothing in the proposed notice of application which pleads the cause of action - whether breach of statutory duty, or misfeasance in a public office, or otherwise - but I gather from the skeleton argument which has been presented that it would be intended to assert negligence (though quite how that could in this case arise, I am not sure), as well as malfeasance. The damages are said to be those suffered as a result of the closure of the business upon revocation of the licence, and as a result of the failure to transfer the licence to the second applicant.

The general principle

26. Applications for judicial review are not an appropriate recourse where there are suitable alternative avenues of relief. The existence of such an alternative route is not an automatic bar. Nonetheless, there are good reasons in practice why courts require applicants who have not utilized all available remedies :

"to show some special or exceptional circumstances why the court should nevertheless assist him."

(See Godfrey JA in Nam Pei Hong Holdings Limited v. Stock Exchange of Hong Kong Limited [1998] HKLRD 910, 918.)

27. As was emphasised in R. v. Takeover Panel ex parte Guinness Plc. [1991] QB 146, the judicial review jurisdiction of the court is a "long stop" jurisdiction, an avenue of last resort, and :

"It is not the practice of the court to entertain an application for judicial review unless and until all avenues of appeal have been exhausted, at least in so far as the alleged cause for complaint could thereby be remedied". (per Lord Donaldson at page 177)

That is especially so where the legislature has made express provision for an appeal procedure. This line is taken, and should be adhered to with some degree of resolve and consistency, both in order to respect the intent of the legislature, and to minimize unnecessary imposition on judicial resources. The strictures against attempted employment of the court's supervisory jurisdiction when it is not warranted are not to be regarded as cosmetic, to be overcome by presenting a court upon an application for judicial review with a fait accompli, namely, that an appeal procedure has not in fact been used and the matter might as well be dealt with. Very good reason indeed must be shown for by-passing the alternative procedures prescribed by statute. As Taylor J, as he then was, remarked in R. v. Brentford General Commissioners, ex p Chan & Others [1986] STC 65, 73 :

" It may be tempting to succumb to the approach, well, the case is here now, why not deal with it rather than divert it onto another route which will bring it before another judge in the same building but much later? That would especially be so where the court's initial reaction was to feel that there was substance in the applicants' complaint. But to do so would be contrary to the principle I have earlier stated. It would, in effect, licence applicants to achieve judicial review by simply arriving here and relying on the inconvenience and delay of their being redirected. It would clog the already swelling lists of properly brought cases for judicial review."

28. The proposition that a remedy by way of judicial review is not to be made available where an alternative remedy exists has been described in R. v. Island Revenue Commissioners, ex p Preston [1985] AC 835 as :

"... a proposition of great importance. Judicial review is a collateral challenge: it is not an appeal. Where Parliament has provided by statute appeal procedures ... it will only be very rarely that the courts will allow the collateral process of judicial review to be used to attack an appealable decision." (per Lord Scarman at page 852)

The relevant statutory provisions

29. Section 10 of the Massage Establishments Ordinance provides :

" Any person who is aggrieved by a decision of the licensing authority made in respect of him under section 6, 7, 8 or 9 may, within 28 days from the date when he was informed of the decision, appeal to the Administrative Appeals Board."

30. The powers of the Administrative Appeals Board are very wide. Under section 21 of the Administrative Appeals Board Ordinance, the Board may :

"(1) ...

(b) receive and consider any material, whether by way of oral evidence, written statements, documents or otherwise, whether or not such material would be admissible in evidence in civil or criminal proceedings;

(c) by notice in writing signed by the Secretary, require any person to attend before it at any hearing and to give evidence and produce documents;

(d) administer oaths and affirmations;

(e) examine on oath, affirmation or otherwise any person attending before it and require such person to answer all questions put by or with the consent of the Board;

...

(g) with the consent of the parties to the appeal, determine the appeal without an oral hearing on the basis of written submissions only;

...

(j) subject to subsection (2), confirm, vary or reverse the decision that is appealed against or substitute therefor such other decision or make such other order as it may think fit;

..."

Subsection (3) contains a further power which appears to be unusual, and is a power not available to a number of statutory appeal boards to whose empowering provisions I have been drawn :

" (3) The Board, on the determination of any appeal, may order that the case being the subject of the appeal as so determined be sent back to the respondent for the consideration by the respondent of such matter as the Board may order."

31. Those appointed to chair the Board must be qualified for appointment as District Judges (section 6).

Madam Yiu's failure to appeal to the Board

32. The failure to utilize this statutory avenue of appeal in this case has been explained thus in the notice of application :

"In view of the fact that Madam Yiu Choi Wan no longer wishes or being capable to be a Licensee, it is inappropriate and in fact not possible for the 1st and/or 2nd Applicant to lodge an appeal under Section 10 of the [Massage Establishments Ordinance] to overturn or vary the decision dated 1st September 1999 by the Licensing Office of the Respondent in respect of the revocation of the Licence of Madam Yiu Choi Wan."

33. I have some difficulty in following the logic of that. Madam Yiu's reluctance to be licensee or her inability to be licensee explains why she would not appeal a decision not to renew her licence. It does not explain a decision not to appeal her application for the transfer of the licence. Indeed it is her very wish to shed the licence which should dictate an eagerness to appeal. It was suggested by Mr Dunn in the course of submissions that she was very depressed and did not wish to pursue the matter further. This is unrealistic. The reality is that the first applicant is the moving force behind the applications for these licences, and behind this application for judicial review. There was very little for Madam Yiu herself to do to pursue an appeal to the Board. And it is a stand which is wholly inconsistent with the suggestion later advanced by Mr Dunn in support of the second application, namely, for interim relief, that Madam Yiu is prepared, in order to secure interim continuity of the business, to put her shoulder behind the wheel and, with added support staff, continue to be licensee for the few months between now and the date set for the hearing of the notice of motion. One might be forgiven for suspecting that Madam Yiu has not appealed to the Board because the applicants wish to challenge the relevant decision by way of judicial review.

The second applicant's failure to appeal

34. Still, there is the second applicant. Why had she not appealed to the Board? Mr Dunn suggests that it is doubtful that she has a remedy under section 10 of the Massage Establishments Ordinance, because it is not clear that the decision not to transfer the licence was one made "in respect of [her]". I do not agree. It is quite clear that the second applicant was herself an applicant for transfer of the licence - I have been shown the application itself. Furthermore, this very application for judicial review itself asserts that she was an applicant for transfer and that her application for transfer was not considered on its merits. There is no basis seriously to suggest that the refusal of that application for transfer, and her chagrin in consequence of that refusal, constitutes her anything other than "a person who is aggrieved by a decision of the licensing authority in respect of her". Nor is there any suggestion that she was unaware of her right of appeal. In the light of the correspondence to which I have referred, such a suggestion, were it to be made, would be untenable.

35. Mr Dunn then says that when the attack by an applicant is upon the decision-making process, rather than upon the merits of the decision, then the proper course to take is an application for judicial review. In support of that proposition, he cited In re Tse Cho [1979] HKLR 339, where, relying on Leary v. National Union of Vehicle Builders [1971] AC 297, McMullin J, as he then was, thought that the existence of a right of appeal to the Governor-in-Council did not justify the court in refusing relief in judicial review, noting that in Leary v. National Union of Vehicle Builders, Megarry J, as he then was, had said that :

"... As a general rule, ... I hold that a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body."

36. I have two comments about that decision (that is, In re Tse Cho). First, the avenue of appeal was there to the Governor-in-Council, whereas in this case, the legislature has provided for an extremely comprehensive review by an appeal body empowered to receive evidence, to hold full hearings and to remedy all the grievances which the second applicant has and to do that which this second applicant asks this court to do, namely, remit the matter for reconsideration by the respondent. In fact that is not quite accurate, for the Board can do more than this court - it can substitute its own view on the merits.

37. Secondly, the proposition upon which McMullin J relied - the proposition, that is, in Leary - has been held by the Privy Council in Calvin v. Carr [1971] Ch 34, to be too broad. As the decision in Calvin emphasised, there is no clear and absolute rule on the question whether procedural defects at an original stage can be cured through an appeal procedure. I think it safe to say that where the appeal procedure is provided by statute and is comprehensive in terms of the questions which can be addressed, the evidence that can be received, and the remedies that can be offered, where there can be no question about the impartiality of that procedure, where the appeal is not limited, say, to a point of law, where the appeal body is not bound to accept determinations of facts made at first instance, and where judicial review holds out the prospect of no greater remedy than can be effected by the appeal procedure - indeed where it holds out less, then this court is entitled to say, and should say, that such a defect as may have occurred in the original decision-making process can be cured on the appeal, and that that is the remedial path that must, in the absence of exceptional circumstances, be travelled.

38. All these indicia are features of this case, and there is, in my judgment, no special circumstance presented why the second applicant should be permitted to use the supervisory jurisdiction of the court when she has chosen not to avail herself of the more effective appeal facility presented by the statute and of which she, through solicitors, was well aware.

39. I note that the time for lodging of the appeal before the Board has now passed. It ought to have been lodged within 28 days of the date upon which the applicants were informed of the decision (see section 10, Massage Establishments Ordinance). But that is not a reason, let alone a good reason, for this court to grant leave to apply for judicial review. If the court were to do that, it allows itself to succumb to pressures, the liability for which lies entirely at the door of the second applicant, or her advisers, and to act contrary to legislative intent. In any event, there is provision in the Administrative Appeals Board Ordinance, section 27, for extension of time beyond the 28 days, and the time may be extended "although the application is not made until after expiration of the time to which the application relates."

40. I have been told that the ramifications of the decision by the respondent are that the operation of the massage establishment has been suspended, and that there are now many jobs at risk. This argument was advanced in support of the application for interim relief. I have given thought to the question whether the claim for interim relief might constitute a special reason in this case to permit judicial review rather than insist on the second applicant taking the appeal route, for I notice that the Board is not empowered to grant such relief. But the answer to that thought in this case is that I am satisfied, for reasons to which I shall come, that there is no case for interim relief, and that the legislation which provides the appeal mechanism in massage establishment cases deliberately intended that there should, in the context of appeals, be no interim relief. In any event, the availability of interim relief in judicial review proceedings is not put forward by either applicant as the reason for not pursuing an appeal before the Board.

41. It might be said that, nonetheless, this court could order an expedited hearing, and that the whole matter might thus be resolved more speedily than an appeal. That has not in fact been said, but I am ever conscious of the suggestion that jobs are said to be stake. There is no evidence before me, and no information before me, about the time taken for an appeal to reach the Board; no suggestion that an early date could not be secured. And, in any event, it must be remembered that even were the applicants to succeed upon a judicial review, the most, in practical terms, that this court could do would be to remit the matter to the respondent to reconsider his decision, and even then, only the decision not to transfer the licence. The Board, on the other hand, is empowered to take the very decision on the merits which the respondent is empowered to take.

42. All this proceeds on an assumption that there is sufficient apparent merit in the application as would otherwise warrant leave. I am prepared to assume that there is, for there does seem to be some question whether the respondent addressed the personal merits of the second applicant herself as a person who might be in a position to exercise better or adequate control over these premises. I have, though, I confess, had some difficulty in discerning the practical result of a successful judicial review, or indeed a successful appeal, for the licence itself has been revoked, and the legality of the revocation decision, and of the decision not to renew the licence, is not challenged. That being so, there is no licence now to transfer. Mr Dunn says that were the respondent to reconsider the matter, and come to the conclusion that the second applicant was a person to whom transfer of the licence ought to have been granted, he might then grant the transfer as from a date before 1 September 1999. That would, it is said, put the second applicant in a position in which she could, rather than apply for a new licence, which is a complex and lengthy procedure, apply for a renewal of the licence which she then held.

43. Be that as it may, there has been shown to me no good reason at all why the second applicant has not utilized the available appeal procedure and, subject only to consideration of the first applicant's position, I think that the leave granted to her to apply for judicial review should be set aside.

The first applicant's position

44. A licence to operate a massage establishment may not be granted to a person other than a natural person (see section 6(5) of the Massage Establishments Ordinance). The first applicant is not such a person. So the first applicant did not apply for a licence, or for transfer of a licence. Mr Wong, for the respondent, concedes that the first applicant is not a party who can be said to be a person aggrieved by a decision of the respondent made "in respect of him", and who can therefore appeal to the Board. I shall proceed on that footing. However, although Mr Wong argues to the contrary, it does appear to me that the first applicant is a person or party that has "a sufficient interest in the matter to which the application relates" (O.53, r.3(7) Rules of the High Court), so as to give it standing to make an application for judicial review in relation to the decisions under attack. It is the company which, through the licensee, operates the establishment and employs the licensee and all others who worked at the sauna place, and it is the company that suffers financially by revocation of the licence. So it has the requisite standing. Now then, says Mr Dunn, that being so, the first applicant has no remedy for its grievance other than an application for judicial review.

45. In my opinion, the court should not grant leave to an applicant in the position of the first applicant on facts such as those in this case. What is happening, and in my opinion clearly happening, is that the first applicant is being used to circumvent the procedures intended by the legislature. The first applicant is not some person or body divorced from, and without control over, those who can and should utilize the appeal procedure that is available. The licensee and the second applicant were at all material times in the employ of the first applicant. Correspondence on behalf of Madam Yiu and the second applicant with the respondent was written at the behest of the first applicant. Madam Yiu and the second applicant are the vehicles by which the first applicant operates the establishment. A decision to launch an appeal by Madam Yiu and/or the second applicant would in reality be a decision taken by the first applicant. It is primarily the first applicant that would benefit from a successful appeal to the Board. There is no evidence before me that the first applicant ever encouraged or invited Madam Yiu or the second applicant to appeal, but that either declined; and that, I have no doubt, is because there was never such a suggestion.

46. It is my judgment that where a scheme which requires licences to be granted to natural persons embraces a comprehensive and effective statutory process for the redress of grievances such that the natural person is required to use that process and not judicial review, then, unless it is shown that the natural person has refused to lend himself to the statutory process, or is unable to do so, it is not open to the corporate employer of that person and de facto operator of the licensed establishment to engage the court's supervisory jurisdiction, especially where there is good reason to conclude that the corporate body has acted hand in glove with the natural person in taking procedural decisions, or is in fact the body making the procedural decisions. To permit that corporate body to come to this court for aid in such circumstances is to make a nonsense of the intention of the legislature in providing for the statutory appeal, and abuses the purpose for which judicial review is intended. It would permit judicial review in every such case. Indeed, such an approach would, logically, mean that even where the natural person utilized the statutory avenue of redress, the corporate body could nonetheless avail itself of judicial review on the ground that it had not itself the right to use the statutory appeal process but nonetheless enjoyed a sufficient interest for the purpose of Order 53 of the Rules of the High Court. That, in turn, could lead to concurrent proceedings about the same licensing application and to a decision of this court inconsistent with the decision of the appeal body. That can never have been intended, and ought not to be allowed.

47. For these reasons, if the second applicant is to be denied judicial review as an avenue of complaint, so, too, should the first applicant be denied that route.

Interim Relief

48. The application for interim relief seeks "a stay of the enforcement of the decision of the respondent dated 1 September 1999". That begs the question : "which decision?", for there were two - the decision to revoke and not renew the licence, and the decision not to transfer the licence. Mr Dunn tells me that he wants me to require the respondent not to implement the revocation and non-renewal decisions. That is at the same time surprising, and not surprising. It is surprising because those decisions are not challenged in this judicial review (or in any other proceedings). It is not surprising, since some sort of suspension of the transfer decision would avail the applicants not a jot if the licence remains revoked. What the first applicant is asking me to do, in effect, is to compel the respondent to renew or extend the licence to Madam Yiu. That is something which this court ought clearly not to do, for not only would this be to undo decisions which are not challenged, but this court would then be acting as a licensing authority and, in addition, would be permitting someone, Madam Yiu, to be the licensee when the representations made, on her behalf, have been that she is wholly unfit, by reason of her psychiatric condition and general pressures, to continue to hold the licence. I note, too, and respectfully agree with, the point made by Findlay J in Sino Asia Investment Limited v. Secretary for Justice (1998) No. AL 37 and 38 (unreported) at page 6 :

"... it seems to me that it is of relevance that, although under the Miscellaneous Licences Ordinance, Chapter 114 provision is made for a stay pending for the outcome of an appeal, no such provision is made under the Massage Establishments Ordinance, Chapter 266. That omission must be assumed to have been deliberate. The legislature did not contemplate that there should be a stay pending the outcome of appeals under Massage Establishments Ordinance, perhaps because it was not thought in accordance with the public interest that an establishment should be permitted to stay open under a licensee in respect of whom there had been, at least, a preliminary finding that he was not a fit and proper person to be a licensee.

In these circumstances, it seems to me doubtful that it is legitimate to use the judicial review procedure to overcome a limitation that is built into the appeal procedure designed for this type of case."

49. This analysis of the claim for interim relief in this case should demonstrate the weakness of such argument as might have been raised that the appeal procedure to the Board does not provide that which judicial review provides, namely, an opportunity for interim relief. It is not intended in such cases that there should be interim relief and, in any event, on the facts of this case, the application for such relief is devoid of merit.

Conclusion

50. Leave to apply for judicial review was granted ex parte, on consideration of the papers alone. It follows that the learned judge who granted leave did not have the advantage, as have I, of inter partes submissions upon the issues I have addressed. In my judgment, the position is clear cut : that this application ought not to have been made by either applicant; that there exists no special reason why Madam Yiu and/or the second applicant did not avail themselves of the statutory avenue of appeal, or why this court should now assist the second applicant; and that the first applicant ought not, in the circumstances, to be permitted to seek, in aid of its grievance, this court's supervisory jurisdiction.

51. I shall accordingly order that the order of Cheung J of 23 September 1999, by which he granted leave to both applicants to apply for judicial review of the decisions of the respondent of 1 September 1999, be set aside. The application for interim relief is dismissed. There is an outstanding application to amend the application for leave in order to add a claim for damages. Although that has not been argued, it must also follow that that application should be dismissed, and I so order. There will be a costs order nisi that the applicants shall pay to the respondent his costs of and occasioned by the applications, such costs to be taxed if not agreed.