LEE CHUEN v. THE COMMISSIONER FOR TELEVISION & ENTERTAINMENT LICENSING

1998, No.AL2

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMINISTRATIVE LAW LIST

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D E C I S I O N

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1. On 2nd January 1998, the Applicant herein, an amusement parlour operator, issued an application for leave to apply for judicial review under Order 53 rule 3. The matter was initially dealt with on the papers, as is the usual practice. I chose not to grant leave at that stage and called for an oral inter partes hearing; that refusal to grant leave on the papers was dated 9th January 1998.

2. I have therefore this afternoon heard argument by Mr Pirie, on behalf of the Applicant, and Mr Ho, on behalf of the Commissioner, as to whether leave should be granted. I confess that I have not found this to be an easy case to discern clear lines of argument, hence the necessity for oral submission.

3. Mr Pirie attacks two matters for which ultimately he seeks an order of certiorari. The first is a Notice and an accompanying Order, dated 27th June 1997 and 25th June 1997 respectively, addressed to his client suspending his licence, Licence No.012920, for 14 days from 14th July 1997 to 27th July 1997, pursuant to the provisions of section 9(1)(b) of the Amusement Games Centres Ordinance, Cap. 345. Secondly, he attacks the refusal of an appeal by the Amusement Games Centres Appeal Board on 22nd October 1997 ( the decision in writing of that Board being given on 15th December 1997.

4. In deciding questions of leave, I am reminded of the words of Godfrey J. (as he then was) in Director of Immigration v. Ho Ming Sai and Others [1994] 1 HKLR 21 where the learned judge observed :-

"In my judgment, the question which a judge has to ask himself at the leave stage is this : 'Does the material before me disclose what might on further consideration turn out to be an arguable case?' If he asks himself whether there is an arguable case, he risks pre-empting questions which ought properly to be decided at the substantive hearing, not at the leave stage."

5. If and in so far as I have transgressed that boundary this afternoon, it is because, in testing the case which it is sought by Mr Pirie to argue in full, I have wished to obtain a rather clearer outline and understanding of the precise nature of his submissions. Mr Ho, on behalf of the Commissioner, has mounted a spirited attack on the application. But at the end of the day, and after some hesitation, I am prepared to let this application through. That is not to say that I think that some of Mr Ho's very cogent arguments lack substance or persuasion; it is simply that in my view, he should keep his powder dry until the substantive argument. In other words, I am unable to bring myself to the point where I can simply dismiss this application out of hand, and refuse leave. I do not think that this would be the intellectually rigorous thing to do, although I am bound to say that some of Mr Pirie's points received a distinctly mixed reception from the bench; nevertheless it seems to me ( and this is where the oral tradition is so valuable ( that at bottom the matter revolves around the validity of the Notice and accompanying Order, when viewed against the circumstances in which they were issued. I dare say, also, that Mr Pirie, as a result of this exercise this afternoon, will have a pretty sure idea of what to run and what not to, but I shall not attempt to constrain him because he points out that although the fulcrum of the case revolves around the validity of the suspension of the licence, there are consequential matters arising at the appellate level in terms of cost orders and so forth. So I give leave for this matter to go forward notwithstanding, as I have said, some hesitation.

6. In these circumstances I make the following concomitant procedural directions :-

1. First, that a bundle be prepared of all the correspondence between the parties to which Mr Ho has referred and which, I accept for reasons of convenience and a wish not to incur undue expense, were not reproduced in full in the leave bundle. I have no doubt that both Counsel would immediately agree that if this matter, as is now the case, is to be debated in full, all the available material should be before the Court.

2. That this application be reserved to me. It would be a gross waste of this afternoon's endeavours, particularly given the somewhat circuitous nature of the argument, if another judge had to be informed in the manner in which I have been informed this afternoon; or, to put it another way, this afternoon's argument will assist greatly in the speedy disposition of the substantive argument as to which, of course, I retain an open mind, and will reserve judgment on the main issues until they are before me once again.

7. As to costs of today, I shall not stick my toe in those particular waters at the moment. I also will keep my powder dry, and reserve the costs of today for further consideration at the conclusion of the substantive hearing. In that way, all parties can be protected, and the concerns of Counsel on both sides can be adequately addressed. As to the estimated time of the argument, I will now hear Counsel as to their views, and as to any consequential procedural matters arising.

[Submissions from Counsel]

8. I have now had the opportunity of hearing from Counsel. I give the Applicant liberty to file such further material as it wishes in support of its application within 21 days from the date hereof, and consequential liberty to the Respondent Commissioner, via his advisors, to file such further affidavit evidence as may be required within a further 21 days from the date of service of that filed by the Applicant.

9. I further give both parties liberty to apply. Mr Pirie is making noises about obtaining a transcript of the proceedings before the Appeal Tribunal. I cannot emphasise too strongly that this Court is not an appellate tribunal, it is a review tribunal, and it is not immediately obvious to me how the transcript of those proceedings can possibly assist me. However, if and in so far as Counsel wishes to do so, I will not prevent him at this stage from so doing, although it seems eminently likely that the 21 day period imposed for the filing of further evidence is unlikely to accommodate the time required for the production of any such transcript, hence the liberty to apply. But I repeat that I really cannot see how that can assist.

10. As to the estimated time, I am now up to speed on the case, and accordingly I cannot think that it would possibly take more than one day, to which provisional estimate both Counsel have indicated their assent. This can always be revisited but I am disinclined, I think, having read the papers and being reasonably conversant with the relevant law, to allocate any more of the Court's scarce resources at this stage. I repeat, and I know both Counsel have taken this on board, that I want this case to be listed before me.

11. It remains only to thank Counsel for their assistance this afternoon.