NG HON KEUNG TOMMY v. THE PUBLIC OFFICER appointed by THE SECRETARY FOR HOME AFFAIRS AND ANOTHER

HCAL 157/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 157 OF 2013

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J U D G M E N T

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Introduction

1. This was the application of Mr Ng Hon Keung (“Applicant”) for judicial review of:

(1)   the decision of a Public Officer appointed by the Secretary for Home Affairs ("Public Officer") dated 13 November 2012 ("Public Officer's Decision") to reject his application for the grant of a new mahjong / tin kau licence in respect of the premises situated at G/F, Nos. 143-145 Tung Choi Street and Flat B, l/F, No. 145 Tung Choi Street, Mongkok, Kowloon ("Premises");

(2)   the decision of the Administrative Appeals Board (“Board”) dated 26 July 2013 ("Board’s Decision") to dismiss his appeal against the Public Officer’s Decision.

2. By way of relief, the Applicant sought:

(1)   An order of certiorari to quash the two Decisions.

(2)   An order of mandamus directing the Public Officer to reconsider his decision in accordance with the law.

The Facts

3. By an application dated 13 October 2011, the Applicant applied to the Commissioner for Television and Entertainment Licensing ("Commissioner") for the grant of a new mahjong / tin kau licence in respect of the Premises under section 22(1)(b) of the Gambling Ordinance, Cap. 148 (“GO”). Before lodging his application, the Applicant said he had obtained and apprised himself of the licensing policy guidelines issued by the Commissioner in the "Brief Policy Guidelines on Issue of Mahjong/ Tin Kau Licence" ("Guidelines").

4. The Guidelines served as a summary of the policy considerations of the Home Affairs Bureau for licensing mahjong/ tin kau parlours.

5. The Guidelines, while indicating the Commissioner would consider the individual circumstances of each application, set out six main factors in determining whether to grant a mahjong/ tin kau licence.  For the present purpose, only the one at paragraph 2(iv) of the Guidelines is relevant.  It reads:

“(iv) 擬選擇位置是否合適

擬使用處所的位置須合適。一般來說，擬使用處所不應位於純住宅區內，也不應接近教育、宗教機構、或為兒童及青少年提供服務的機構或設施。另外，該麻將/天九館的成立，不應導致區內麻將/天九館過分密集。”

6. A working translation of paragraph 2(iv) reads:

“(iv) Is the proposed location suitable

The location of the proposed establishment must be suitable. As a general rule, the proposed establishment should not be located within a purely residential neighbourhood or in close proximity to educational or religious institution or an institution of or facility catering to children and youths.  Besides, the establishment of the proposed parlour should not result in undue concentration of mahjong/ tin kau parlours in the area.”

7. On 1 April 2012, all the powers previously conferred upon the Commissioner by the GO to license premises for the playing of games in which mahjong or tin kau tiles are used came under the purview of the Public Officer.

8. On 12 September 2012, the Office of the Licensing Authority, Home Affairs Department, wrote to the Applicant indicating that it intended to reject his application on the ground that the location of the Premises (“Location”) was considered unsuitable for the establishment of a mahjong/tin kau parlour as it was in close proximity to a number of religious and educational institutions.  Specific names of these institutions, 10 in total, were set out in the letter.  The Applicant was invited to make representations within 14 days if he so wished.

9. The Applicant made his representations by letter dated 20 September 2012.  In the letter, the Applicant disagreed with the Office of the Licensing Authority that the Location was in close proximity to the cited institutions.  He urged the Office to inter alia take into account the fact that the Premises and the cited institutions were situated on two different streets and were separated from each other by large blocks of buildings.  Accordingly, visitors to the cited institutions needed not go past the Premises and might not even be aware of their presence.

10. By a written notice dated 13 November 2012 (“Notice”), the Applicant was formally notified of the Public Officer's Decision.  In the Notice, it was specifically stated that the Public Officer’s Decision was based on the ground that "The proposed location is unsuitable for the establishment of a mahjong/ tin kau parlour as it is in close proximity to a number of religious and educational institutions.".

11. By an accompanying letter also dated 13 November 2012 (“Accompanying Letter”), the Office of the Licensing Authority further explained that the Public Officer had considered the representations raised in the Applicant’s letter dated 20 September 2012 and would make three points in reply.

12. Point (a) referred to paragraph 2(iv) of the Guidelines and the fact that there were 10 religious and educational institutions situated about 70 to 100 metres from the Location.  This clearly echoed the ground stated in the Notice. Point (b) was that the Premises were located at a section of Tung Choi Street which was famous for shops selling gold fish, pets and related accessories, also known as "Gold Fish Street". Children and youngsters from within and outside the area would frequent these shops.  Point (c) referred to the fact that the Location was opposite to a footbridge leading to New Century Plaza and Mongkok East MTR Station with heavy pedestrian traffic. Hence, pedestrians, including children and youngsters visiting the 10 religious and educational institutions, could freely and easily pass through the Location.

13. The Accompanying Letter concluded by stating that, having considered all the circumstances, the Public Officer decided the Location was unsuitable for the establishment of a new mahjong/tin kau parlour and hence rejected the licence application.

14. The Applicant lodged an appeal against the Public Officer’s Decision with the Board. In his Notice of Appeal dated 8 December 2012, the Applicant gave as his grounds of appeal (i) the Public Officer’s Decision on the ground that the Location was close to a number of religious and educational institutions not only lacked sufficient reasons in support but was made without adequate consideration of the Location and the topographical features of the locality; and (ii) the Public Officer had failed to properly consider the relevant factors set out in the Guidelines and to give them their appropriate weight.

15. On 16 May 2013, there was an oral hearing before the Board. On 26 July 2013, the Board issued its written decision dismissing the appeal and confirming the Public Officer’s Decision.

16. In summary, the Board accepted the Public Officer had acted in accordance with the prevailing licensing policy summarized in the Guidelines. The Board found the Public Officer’s normal/ general practice was to adopt a 100-metre radius within which the relevant institutions were to be regarded as being “in close proximity” to a proposed location for mahjong /tin kau parlour. The Board found this practice was reasonable for the purpose of maintaining consistency in the licensing policy and ensuring fairness. The Board found the Public Officer had not adhered rigidly to the 100‑metre yardstick – rather, the Public Officer had considered the individual circumstances of the application but disagreed with the Applicant’s representations.

Relevant Statutory Provisions

17. Section 22 of GO provides:

“22. Licences

(1) The public officer appointed by the Secretary for Home Affairs may-

…

(b) license premises for the playing therein of games in which mahjong or tin kau tiles are used.

…

(5) Notice in writing of a decision of the public officer appointed by the Secretary for Home Affairs under this section shall be given by the public officer appointed by the Secretary for Home Affairs to the person in respect of whom it is made.

(5A) A notice under subsection (5) shall, except in the case of a decision to grant or to renew a licence or to impose other conditions, be accompanied by a statement of the reasons for the decision.

(5B)  Any person aggrieved by a decision of the public officer appointed by the Secretary for Home Affairs made in respect of him under this section may, within 28 days after receiving notice of the decision, appeal to the Administrative Appeals Board.”

18. Section 21 of Administrative Appeals Board Ordinance, Cap. 442 (“AABO”) provides:

“(1) For the purposes of an appeal, the Board may-

…

(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;

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(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;

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(2)   The Board, in the exercise of its powers under subsection (1)(j), shall have regard to any statement of policy lodged by the respondent with the Secretary under section 11(2)(a)(ii), if it is satisfied that, at the time of the making of the decision being the subject of the appeal, the appellant was or could reasonably have been expected to be aware of the policy.”

19. The Respondents submitted and the Applicant did not demur that an appeal to the Board is in the nature of a de novo hearing – the Board has the power to admit evidence and may confirm, vary or reverse the Public Officer’s Decision or substitute any other decision as it may think fit.

Grounds of JR

20. In his Form 86, the Applicant set out three grounds for challenging the Decisions:

(1)  The Public Officer had misapplied and the Board had misinterpreted the meaning of the policy statement set out in paragraph 2(iv) of the Guidelines (“1^stGround”).

(2)  The Public Officer and the Board had unlawfully fettered their discretion (“2^ndGround”).

(3)  The Public Officer had failed to give any or adequate reason for and/or have sufficient regard to the presence of another mahjong parlour within the 100-metre circle (“3^rdGround”).

21. In an “Annex” to his skeleton submissions dated 5 November 2014, Leading Counsel for the Applicant (who was not the author of the Form 86) sought to rely on two additional grounds.  For ease of reference, they are set out verbatim here:

“4.1 An appeal under s. 22(5B) of the Gambling Ordinance by a person aggrieved is an appeal against the decision notified to him under s. 22(5A), which sets out the reasons for the decision. In this case, the only reason provided in the notice under s. 22(5A) was that the premises were unsuitable because of the close proximity of nearby religious and educational institutions.

4.2  The 'views' of the Public Officer set out in a letter dated 13 November 2012 accompanying the notice under s. 22(5A) and authored by a third party were not incorporated in the said notice and should be disregarded. (If not disregarded in their entirety, only the view that may be said to complement the reasons for rejection in the s. 22(5A) notice is that at (a) concerning the location of the subject premises some 70‑100 metres away from relevant establishments.)” (“4^th Ground”)

   …

“5.1 There was no evidence that the Public Officer had used a '100 metre radius circle' rule to assist him in deciding the issue of 'close proximity' under the Guidelines or, if he did use it, how he used it. In these circumstances, the Board was not in a position to say, as it did, that he had used it and, if even it could say this, could not say whether he had used it lawfully or unlawfully.

5.2  By contenting itself to review the decision of the Public Officer on the assumption that he had used the rule reasonably, the Board made a conclusion that was not supported by the evidence. Such error was compounded by the Board not making a decision on its own whether the subject premises were in 'close proximity' to relevant establishments, with or without the aid of a rule of distance with the result that there was no lawful determination of the issue.” (“5^th Ground”)

The 1^st Ground

22. At paragraph 15 (1) 1.2 of the Form 86, the Applicant contended that “the Public Officer erred in taking into consideration potential pedestrian traffic flow from beyond the 100 metre circle. By taking into account such extraneous consideration, the Public Officer had distorted the plain and ordinary meaning of the policy statement set out in paragraph 2(iv) of the Guidelines.”

23. At paragraph 15(1) 1.3 of the Form 86, the Applicant contended that “the Board had failed to apply the proper test in interpreting the policy statement set out in paragraph 2(iv) of the Guidelines. By focusing only on whether the 100 metre radius requirement was a reasonable one, the Board had overlooked the real question was what a reasonable and literate man’s understanding of “in close proximity” would be”.

24. I do not accept the 1^st Ground.

25. It is correct that where policy guidelines have been issued for the grant or refusal of licences, the decision-maker must not overlook or ignore them when making his decision and, in addition, must properly construe them in the way in which an educated person acquainted with the factual context would do so: Wong Wei Man v The Amusement Game Centers Appeal Board unrep.; HCAL775 of 2000, 2 November 2000; Stock J (as he then was). Further, it is not open to a decision maker to interpret a policy other than to give it its plain and ordinary meaning: Leung Kam Yung Ivy v Commissioner for Television and Entertainment Licensing & Another unrep; HCAL 1986 of 2000; Seagroatt J; 30 March 2001.  However, I do not agree the Public Officer had distorted the meaning of paragraph 2(iv) of the Guidelines at all.  Nor do I agree the Board had failed to properly interpret paragraph 2(iv) of the Guidelines.

26. It seems to me the Applicant’s contentions are, at best, based on a misreading of the Notice and the Accompanying Letter, and the Board’s Decision.

27. In the Notice itself, it was stated that the Public Officer rejected the application on the ground that "The proposed location is unsuitable for the establishment of a mahjong / tin kau parlour as it is in close proximity to a number of religious and educational institutions."  In other words, paragraph 2(iv) of the Guidelines was invoked.  This was reiterated in the Accompanying Letter as point (a).  In support of point (a), the Accompanying Letter provided the names of those 10 religious and educational institutions, together with addresses, which the Public Officer considered to be “in close proximity” to the Location.

28. That, in my view, is the long and short of the Public Officer’s Decision based on paragraph 2(iv) of the Guidelines.  It is true that two further grounds were given in the Accompanying Letter for rejecting the application ie points (b) and (c) which I have summarized in paragraph 12 above.  But as I read the Accompanying Letter, they were additional points made in response to the Applicant’s representations – they were not and did not purport to be further explanations/ elaborations of the Decision based on paragraph 2(iv) of the Guidelines.

29. As far as the Board is concerned, having reviewed the contents of its written Decision, this court can find no trace of evidence or reasoning in support of the contention that the Board had misapplied or misinterpreted paragraph 2(iv) of the Guidelines. On the contrary, it seems to this court the Board was quite conscious of the fact that the term “in close proximity” is not defined in the Guidelines and the Board had to give paragraph 2(iv) its ordinary and natural meaning: see paragraphs 22 to 24 of the Board’s Decision. Further, while the Board had found the Public Officer’s normal/ general practice of adopting the 100‑metre yardstick to be reasonable, that did not mean the Board had overlooked the real issue ie the meaning of paragraph 2(iv) of the Guidelines.

The 2^nd Ground and the 5^th Ground

30. These two grounds can conveniently be dealt with together.

31. At paragraph 15(2) 2.1 of the Form 86, the Applicant contended that “by elevating the 100 metre radius requirement to the status of a strict and/or overriding criterion, the Public Officer had imposed an unlawful fetter on his discretion. And by reason of their over rigid adherence to the 100 metre radius requirement and/or inflexible application of the relevant policy referred to in paragraph 2(iv) of the Guidelines, the Public Officer and the Board had failed to exercise genuine discretion and/or considered the facts of the case before it properly.”.

32. At paragraph 15(2) 2.2 of the Form 86, the Applicant contended that “the policy of permitting applications to depart from 100 metre radius requirement only in special or exceptional circumstances amounted in practice to a blanket policy.”.

33. As stated above, the 5^th Ground is that there was no evidence  the Public Officer had used a 100 metre radius rule to assist him in deciding the issue of “in close proximity” under the Guidelines or, if he did use it, how he used it, and the Board erred in assuming the Public Office did use it reasonably.

34. This 5^th Ground came as a surprise as it is on its face totally contradictory to the 2^nd Ground in which the complaint was that the Public Officer did use the 100 metre radius yardstick, but he used its rigidly.  In my view, this ground is an afterthought and is wholly unmeritorious. This is because, before the Board, it was the Applicant’s case that the Public Officer had blindly and rigidly abided by the 100 metre radius standard in rejecting his application, without considering any other factors: see paragraphs 10 and 25 of the Board’s Decision. By “inserting” the 5^th Ground at the last minute, the Applicant is moving the goalpost.

35. This court can find no trace of evidence or reasoning in support of the contentions that either the Public Officer or the Board had elevated the 100 metre radius yardstick to the status of a strict or overriding criterion or had rigidly adhered to it in applying paragraph 2(iv) of the Guidelines.

36. As far as the Public Officer was concerned, his approach in applying paragraph 2(iv) of the Guidelines was explained to the Board in paragraph 9 of his skeleton submissions dated 9 May 2013.  In summary, the 100 metre radius yardstick was used simply as a reference point and no more.  It did not mean that all relevant institutions falling within the 100 metre radius must be regarded as being “in close proximity” to the proposed location or vice versa.

37. As I said, before the Board, it was the Applicant’s case that the Public Officer had blindly and rigidly abided by the 100 metre radius standard in rejecting his application, without considering any other factor. This argument was expressly rejected by the Board. The Board found that the Public Officer had not rigidly adhered to any strict rules.  Rather, the Board found he had considered the various circumstances raised by the Applicant before coming to his decision: see paragraph 30 of the Board’s Decision. This finding is amply supported by the fact that the Public Officer had also taken into account the matters pertaining to points (b) and (c) in coming to his decision. 

38. As far as the Board was concerned, this court does not see how it can be said the Board had elevated the 100 metre radius yardstick to the status of a strict or overriding criterion. On the contrary, at paragraph 25 of the Board’s Decision, the Board actually accepted the Applicant’s submission that the 100 metre radius yardstick must not be applied inflexibly. In the end, the Board found the Public Officer’s normal/ general practice of adopting the 100 metre radius yardstick to be reasonable, but the Public Officer had not rigidly adhered to any strict rules:see paragraphs 22 – 24 and 30 of the Board’s Decision. Importantly, theBoard accepted the Public Officer’s reasons for rejecting the application, including inter alia the close proximity of the Location to the relevant institutions: see paragraph 30 of the Board’s Decision.  In other words, contrary to the contention at the second part of the 5^th Ground, the Board did make a decision on its own that the Location was in close proximity to the relevant institutions.

39. I therefore must reject both grounds.

The 3^rd Ground

40. At paragraph 15(3) 3.1 of the Form 86, the Applicant contended that “the Public Officer ought to have regard to the importance of consistency and to give his reasons for departure from the previous decision to issue another mahjong parlour [licence] which was not only 75 metres away from the proposed location but also in closer proximity to a facility catering to children and youths, namely, the Study Room.”.

41. At paragraph 15(3) 3.2 of the Form 86, the Applicant contended that he “was entitled in these circumstances to an express explanation as to why the other mahjong parlour was allowed to operate from there, and the Applicant’s legitimate interests had been substantially prejudiced by the lack of such an explanation.”.

42. To start with, I note that this ground is relied upon in challenging the Public Officer’s Decision alone, but not the Board’s Decision, for reasons which would soon become apparent. It seems to me that unless the Board’s Decision can be challenged on this ground as well, it would be a wholly futile exercise to analyse whether or not the Public Officer’s Decision could be impeached on this ground. I therefore propose to deal with this ground with the brevity that it warrants.

43. First, the 1^st Respondent complained that this was a completely new point which was not raised by way of written representations to the Public Officer before his decision or as a ground of appeal before the Board.  Further, the evidence now relied upon by the Applicant in his affirmation dated 24 October 2013 was not placed before the Public Officer (or the Board for that matter).  As such, the Applicant is not entitled to accuse the Public Officer of having failed to take into account the presence of that other mahjong parlour (“MJP1”) before making his decision or of having failed to state the reasons for giving the Applicant less favourable treatment.  They submitted that the authorities relied upon viz North Wiltshire District Council v Secretary of State for the Environment and Clover (1993) 65 P&CR 137 and R (On the application of Fox Strategic Land and Property Ltd) v Secretary of State for Communities and Local Government [2013] 1 P&CR 6 did not assist the Applicant in that they were cases in which an earlier (and material) decision had been placed before or known to the decision-maker who had failed to deal with it or had simply ignored it.

44. I agree that the two authorities did not assist the Applicant. As Mann LJ stated in North Wiltshire District Council v Secretary of State for the Environment and Cloverat 146:

“The decision of 1982 had been placed before the inspector in the sense that it was referred to in the district council’s planning history, enclosed with their submissions and referred to in Mrs. Hawkins’ letter which had been forwarded to him and which he said he had considered … I am not concerned with the treatment of issues which were not raised. I am concerned (andonly concerned) with the disregard of a consideration of which the materiality was apparent and of which the inspector was made aware by a party to the appeal.”

45. The presence of MJP1 nearby had not been regarded by the Applicant as a sufficiently similar case to his own application so as to warrant similar treatment or at least consideration. This is apparent from the fact that it was not raised by the Applicant with the Public Officer (or the Board). In these circumstances, it is unclear to this court how the Applicant can now seek to argue that he had been given less favourable and hence inconsistent treatment compared to the case of MJP1 or criticize the Public Officer for failing to give an explanation for the inconsistent treatment.

46. Second, on the evidence now before this court, it appears the circumstances of MJP1 are wholly different and therefore distinguishable from the Applicant’s case in that (i) it is a case of relocation from Shanghai Street (from which it had been in operation since 1978) to Tung Choi Street in 1997 and (ii) the grant of the licence to MJP1 in 1997 was governed by a different policy statement which provided for sympathetic consideration of a “relocation” case.

47. Given that the circumstances of MJP1 are different, and given the express policy of considering each application in accordance with its own individual circumstances, this court does not find any merits in the 3^rd Ground and I hereby reject it.

The 4^th Ground

48. Lastly, I do not accept the 4^th Ground.  This is clearly an afterthought and is completely unmeritorious.  

49. The provisions of section 22 GO are clear.  Under sub‑section (1), the discretion whether to grant a mahjong/ tin kau licence rests with the Public Officer. Under sub-section (5), he must give notice in writing of his decision. Under sub-section (5A), if he decides against the application, then the notice in writing of his decision must be “accompanied by a statement of the reasons for the decision”.

50. In the present case, all these statutory requirements have been fulfilled.

51. The Applicant was sent the Notice and the Accompanying Letter (together with blank forms of the notice of appeal) as one “composite” document.  The Public Officer’s Decision was set out clearly in the Notice.  The reasons given were those stated on the face of the Notice ie unsuitability of the Location and in the Accompanying Letter ie points (a) to (c).  The mere fact that one of the reasons relied upon by the Public Officer ie unsuitability of the Location/ point (a) was set out on the face of the Notice does not vitiate the fact that altogether three reasons were relied upon by the Public Officer in rejecting the application.  Nor do I see why that in itself renders the other two reasons ie points (b) and (c) irrelevant and should be discounted.

52. The Applicant is not alleging that he has been prejudiced by the way in which the Notice and the Accompanying Letter were sent to him. Nor is he alleging that he had been confused as to what were the reasons for the Public Officer’s Decision. Indeed, in my view, no reasonable person receiving the “composite” document could have been under any misconception as to the reasons for the Public Officer’s Decision. 

53. Lastly, it is difficult to see how discounting points (b) and (c) could assist the Applicant in this judicial review.  Unsuitability of the Location ie point (a) in itself is sufficient for the purpose of supporting the Public Officer’s Decision and the Board’s Decision.

Disposition and costs order nisi

54. For the above reasons, the application for judicial review is dismissed.

55. There will be an order nisi that costs be to the 1^st Respondent, to be taxed if not agreed.