CHENG CHUN CHON v. COMMISSIONER FOR TELEVISION AND ENTERTAINMENT LICENSING

IN THE COURT OF APPEAL

1995, No. 233
(Civil)

Headnote

Case stated under Section 15 of the Amusement Game Centres Ordinance on "questions of law" for the opinion of the Court of Appeal - Three of the four questions raised were not points of law. Observations by Court of Appeal on the procedure by way of case stated.

IN THE COURT OF APPEAL

1995, No. 233
(Civil)

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J U D G M E N T

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Litton, V.-P. (giving the judgment of the Court):

Introduction

1. This matter comes to us on a case stated by an Appeal Board constituted under Section 13 of the Amusement Game Centres Ordinance, Cap 435.

2. Section 15 of the Ordinance empowers the Appeal Board, in the course of hearing an appeal under the provisions of Part III of the Ordinance, to refer to this court any question of law arising in the appeal before it. The procedure by which the question of law is referred to this court is by the Appeal Board stating a case for our opinion.

3. The case stated should be complete in itself (see the observations of Huggins J in Attorney General v. Leung Chi-kin [1974] HKLR 269 at 272) and should contain sufficient statements of fact for the points of law to be identified. The stated case before us is five pages long. The parties have referred to a further 119 pages of material as if those formed part of the stated case. Technically we cannot do that, but since we are empowered by s15(2) to amend the case, we have dealt with the matter as if the case had been amended to incorporate such material. This is not entirely satisfactory, but considering the long delay which has already occurred, the alternative of remitting the case back to the Appeal Board is even more objectionable.

4. The so-called questions of law for our determination are as follows:

"(1) Whether the Commissioner for Television and Entertainment Licensing can invoke sections 9(2)(d) and 5(4)(a)(ii) of the Amusement Game Centres Ordinance in relation to licences granted under the provisions of the Miscellaneous Licences Ordinance, Cap.114.?

(2) Whether the Appellant has ceased to be a fit and proper person to operate an amusement game centre?

(3) Whether the Commissioner has failed to take account of the special circumstances of the Appellant's case leading to his criminal conviction?

(4) Whether the Commissioner should, in the light of the exceptional circumstances of this case, impose a less severe punishment against the Appellant?"

Background facts

5. The appellant before the Appeal Board is one Cheng Chun Chon who, for a number of years, held an amusement game centre licence in respect of Shop 50, Ground Floor, Golden Building, No. 143 Kweilin Street, Shamshuipo. The licence was first issued under the provisions of the Miscellaneous Licences Ordinance and held under that Ordinance until 1 December 1993 when the Amusement Game Centres Ordinance came into force. Under Part II of the Amusement Game Centres Ordinance the control of licences is vested in the Commissioner for Television and Entertainment Licensing.

6. Section 9 of the Ordinance provides:

"9. Revocation, suspension, refusal to renew; amendment or variation of conditions of a licence

(1) The Commissioner may by notice in writing served upon the licensee either personally or by registered post-

(a) revoke a licence;

(b) suspend a licence for such period of time as he may think fit;

(c) refuse to renew a licence; or

(d) amend or vary the conditions of a licence,

on any ground mentioned in subsection (2).

(2) The grounds referred to in subsection (1) are that-

(a) ....

(b) ....

(c) ....

(d) the Commissioner has ceased to be satisfied of any matter in respect of which he is required to be satisfied under section 5(4)(a);

(e) ....

(f) ...."

7. Section 5(4)(a) states:

"5. Application for and grant of a licence

(1) ....

(2) ....

(3) ....

(4) The Commissioner shall not grant a licence unless he is satisfied in relation to the proposed operation of the amusement game centre, that -

(a) the person applying for a licence is an individual person who -

(i) ....

(ii) is a fit and proper person to operate an amusement game centre;"

8. Factually, what happened in this case was this: On 3 March 1994 at the Eastern Magistracy the appellant was convicted on his own plea on one charge of corruption under Section 4 of the Prevention of Bribery Ordinance, Cap 201. The charge to which he pleaded guilty was as follows:-

"That [the Appellant] on or about 19th July 1990 without lawful authority or reasonable excuse offered an advantage namely HK$50,000.00 to officers of Television Entertainment Licensing Authority as an inducement of or a reward for assistance in processing an application for an amusement game centre licence at Shop G04, Ground Floor, Cheung Sha Wan Plaza, 881 Cheung Sha Wan Road, Kowloon."

9. The appellant was, on conviction, sentenced to a term of imprisonment for 9 months, suspended for two years.

10. On 17 August 1994 the Commissioner wrote to the appellant's solicitors as follows:

" 17 August 1994

Messrs. Francis Yim & Co, Solicitors
Room 906, 9/F
20 Pedder Street, Central
Hong Kong

Dear Sirs,

Amusement Game Centre Licence
Shop 50, G/F., Golden Building
143 Kweilin Street, Shamshuipo, Kowloon

It has come to my attention that your client, Mr. CHENG Chun-chon, was convicted of offering bribes to a public servant in contravention of Section 4 of the Prevention of Bribery Ordinance, Cap. 201, after he pleaded guilty at Eastern Magistracy on 2 March 1994. Having examined the facts of the case, I consider that the misconduct committed by Mr. CHENG is a serious one. It is doubtful whether he is still a fit and proper person to hold the licence in respect of the above premises. I am therefore considering to revoke Mr. CHENG's licence by invoking section 9(1)(a) of the Amusement Game Centres Ordinance, Cap. 435, on the ground that the Commissioner has ceased to be satisfied that Mr. CHENG is a fit and proper [person] to operate the amusement game centre (sections 9(2)(d) and 5(4)(a)(ii) refers).

Mr. CHENG is now invited to submit representations, if any, to this Authority within 14 days from the date of this letter. If I do not hear from him by 31 August 1994, I shall assume that he does not wish to comment and a decision will be made accordingly.

Yours faithfully,

 

(Tony SUM)

for Commissioner for Television
and Entertainment Licensing"

11. There was then correspondence between the parties. It dealt with a number of matters, such as the material upon which the Commissioner proposed to act, including the transcript of the court proceedings in the Eastern Magistracy. The dead-line for making representations was postponed.

12. On 20 October 1994, the appellant's solicitors wrote as follows:

"Commissioner for Television and
Entertainment Licensing,

....

Dear Sir,

In response to your notice of intended revocation dated 17th August 1994 we submitted herewith representations of Mr. Cheng Chun Chon for the Commissioner's consideration.

Kindly acknowledge receipt by signing and returning to us a copy of this letter.

Yours faithfully,"

13. Finally, on 18 November 1994 the Commissioner exercised her powers under s9(1)(a) of the Ordinance and gave notice as follows:

"18 November 1994

Messrs. Francis Yim & Co., Solicitors,

....

Dear Sirs,

I refer to your letter dated 20 October 1994 in response to my intention to revoke the licence in respect of the above premises.

I have considered all the points raised in the representation and I am satisfied that none justifies the reversal of my intention. I have therefore decided to revoke the licence under section 9(1)(a) of the Amusement Game Centres Ordinance, Cap 435, on the ground that the Commissioner has ceased to be satisfied that your client, Mr. CHENG Chun-chon, is a fit and proper person to operate the amusement game centre (sections 9(2)(d) and 5(4)(a)(ii) of the same Ordinance refer).

An order made by the Commissioner under section 10(2) of the Ordinance is enclosed.

If you are aggrieved by the Commissioner's decision, you may lodge a notice of appeal in the prescribed form and manner, within 28 days after receiving this letter, in accordance with the Amusement Game Centres (Appeal Board) Regulation (Cap. 435 subsidiary legislation).

Yours faithfully,

 

(Tony SUM)

for Commissioner for Television
and Entertainment Licensing"

14. The enclosed order reads:

" AMUSEMENT GAME CENTRE LICENCE (Cap. 435)

In pursuance of section 10(2) of the Amusement Game Centres Ordinance (Cap. 435), I HEREBY ORDER that notice in writing under section 9(1) of the said Ordinance be served upon Mr. CHENG Chun-chon to the effect that Licence No. 11229 issued to him on 20 December 1993 under Part II of the said Ordinance be revoked with effect from 15 December 1994.

Dated this 18th day of November 1994.

 

(Mrs Rita Lau)

Commissioner
Television and
Entertainment Licensing"

15. The appellant then appealed and the revocation was, by the operation of s11(2), automatically suspended. On 17 December 1994 the appellant applied to the Appeal Board to state a case under the provisions of s15(1) of the Ordinance. Regrettably, it took over 10 months for the case to be stated. The document we have before us is dated 25 September 1995.

Questions of law

16. It would be convenient to deal, first, with questions (2), (3) and (4) which are in truth not questions of law at all.

17. The factual background to the exercise of the Commissioner's powers has been recited earlier and is straightforward. The appellant has been convicted of a serious criminal offence: not, admittedly, in connection with the actual licence which was revoked - that relating to Shop 50, Ground Floor, Golden Building, Kweilin Street - but in connection with an application for a licence at Cheung Sha Wan Plaza, 881 Cheung Sha Wan Road, in which his brother was involved. The appellant accepts by his guilty plea that he corruptly offered $50,000 to officers of the Television Entertainment and Licensing Authority (TELA) as an inducement to or reward for assistance in processing the application for that licence. Insofar as question (2) suggests that, upon these facts, the Commissioner cannot, in law, reach the conclusion that the appellant is no longer a fit and proper person to operate an amusement game centre, it is untenable.

18. As to question (3), the appellant says that there are mitigating circumstances surrounding the commission of the offence: such as the fact that the appellant was led to offer the bribe by the actions of an ICAC undercover agent posing as a TELA officer. This, the appellant says, explains why the magistrate exercised exceptional leniency and ordered the sentence of 9 months' imprisonment to be suspended.

19. So be it. The Commissioner was not called upon to re-try the criminal case. Her responsibilities are those under the Ordinance. The seriousness of the matter, in terms of the Ordinance, is for the Commissioner to decide. No question of law is raised by the so-called "special circumstances of the appellant's case, leading to his criminal conviction", as question (3) suggests.

20. Question (4) is even more absurd. The exercise of discretion, under s9(1) of the Ordinance, is for the Commissioner: not for this court.

21. This brings us to question (1): which is the only question of law properly raised for our determination. This focuses on s5(4)(a) which says:

"(4) The Commissioner shall not grant a licence unless he is satisfied in relation to the proposed operation of the amusement game centre, that -

(a) the person applying for a licence is an individual person who -

(i) ....

(ii) is a fit and proper person to operate an amusement game centre;"

22. Counsel's argument runs thus: Section 5(4)(a) is the foundation for the exercise of the Commissioner's powers; it is the only ground for revocation invoked by the Commissioner; it is only because the Commissioner has ceased to be satisfied of the matter in respect of which she is "required to be satisfied under s5(4)(a)" for the grant of a licence that the licence was revoked; but s5(4)(a) refers to a licence granted under the Amusement Game Centres Ordinance: not to a licence originally granted under the Miscellaneous Licences Ordinance; therefore, it is said by counsel, the Commissioner is powerless in regard to the appellant's licence, since it was first granted prior to 1 December 1993 under the Miscellaneous Licences Ordinance and not under this Ordinance.

23. This argument is untenable. The "grounds" for revocation referred to in s9(2)(d) identify four separate matters, of which "a fit and proper person to operate an amusement game centre" is one. It has nothing to do with when the licence was first granted. Moreover, s23(1) says:

"23. Existing licences

(1) An amusement game centre licence which was granted under the Miscellaneous Licences Ordinance (Cap. 114) and remained in force immediately before the commencement of this section shall continue in force after such commencement and have effect according to its tenor as if it were a licence granted under section 5 of this Ordinance."

24. In other words, as from 1 December 1993 the licence remained in force as if it were granted under the Ordinance. It is therefore revocable under the Ordinance.

25. The answer to question (1) is simply Yes. The Commissioner can, in law, invoke s9(2)(d) and s5(4)(a)(ii).

Conclusion

26. The reference to this court having been determined, it is now for the Appeal Board to conclude the appeal as soon as possible, as required by s15(4). The appellant will pay the costs of and occasioned by this appeal on a common fund basis.