In re LEUNG KAM YUNG IVY

1996 No. MP 1286

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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R E A S O N S    F O R    J U D G M E N T

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1. On the 4th of July 1996, I dismissed the applicant's application for a judicial review of the decision of the Acting Commissioner for Television and Entertainment Licensing (the Commissioner) refusing the applicant's application for a mahjong/tin kau licence pursuant to the Gambling Ordinance and the decision of the Administrative Appeals Board (the Board) dismissing the applicant's appeal against the decision of the Commissioner. I indicated that I would give my reasons in writing and this I now do.

2. The applicant had previously been granted a mahjong/tin kau licence on 7th of February 1994 for a period of one year to run a mahjong/tin kau business with 20 tables in the name of Lung Wai Mahjong Company in Temple Street. The business closed down at the end of 1994 when the landlord recovered possession of the Temple Street premises for non-payment of rent.

3. In December 1994, the applicant through her solicitors, Messrs. Wing-Sum Lo and Co. applied to the Commissioner for a mahjong/tin kau licence for 40 tables in respect of another premises at G/F, 109-111 Portland Street, Kowloon. (The said Premises)

4. The application was referred to the Commissioner of Police, District Officer (Yau Tsim Mong), Director of Buildings and Director of Lands for comments. The Police raised no objection. The Director of Lands confirmed that the intended use of the premises did not contravene the lease condition and no comment was given on the application. The Director of Buildings also confirmed that the approved use of the premises was 'shop' under the occupation permit in question.

5. The District Officer (Yau Tsim Mong) reported that the said premises were inside a commercial building with its lower floors occupied by villas/apartments and night clubs and its upper floors by offices of commercial undertakings. One of such units objected to the application for reason of security. But there were strong objections from the Shing Yan Kindergarten and the Peniel Church cum Kindergarten. The two institutions were located in the vicinity and their officers-in-charge worried that the existence of a mahjong/tin kau parlour would introduce the concept of gambling and affect the personal values of children/students as well as their parents.

6. A site inspection by the Commissioner confirmed that the Shing Yan Kindergarten was occupying the first and second floors of a building adjacent to the said premises. The school entrance was two shop spaces away from the said premises. The Peniel Church cum Kindergarten was occupying a purpose-built building at 90-98 Portland Street which was only 30-40 metres away from the said premises.

7. The Commissioner took the view that the said premises was too close to the Shing Yan Kindergarten and the Peniel Church cum Kindergarten and further representation was invited from the applicant through her solicitors.

8. The applicant made further representation, pointing out that there were already a number of undesirable entertainment establishment, including other mahjong/tin kau parlours on the other side of Portland Street and two RHKJC off-course betting centres in the proximity of the church and the two kindergartens. It was also pointed out that there were other access roads to the two kindergartens away from the said premises and that the business hours of the proposed mahjong/tin kau establishment would be 12.00 noon to 12.00 midnight.

9. The District Officer, on the other hand pointed out that the entrances of the kindergartens in the close proximity of the said premises were all used by students and parents and that the school hours were from 9.00 a.m. to 4.20 p.m.

10. The Commissioner conducted another site-inspection and found that many students of the Shing Yan Kindergarten passed the said premises with their parents.

11. The Commissioner decided to uphold the previous decision to refuse the application of the applicant which decision the Commissioner refused to review. The applicant then sought to review the decision of the Commissioner before the Administrative Appeals Board (the Board) as she was entitled to under s.22(5B) of the Gambling Ordinance. The Board confirmed the decision of the Commissioner in refusing to grant the licence to the applicant.

12. In its statement, the Commissioner set out the policy concerning the granting of a mahjong/tin kau licence as follows:

"When the Commissioner for Television and Entertainment Licensing ("the Commissioner") considers an application for the grant of a mahjong/tin kau licence, he will take into account relevant factors such as the suitability of the applicant, the premises, the location and local opinion.

With regard to the suitability of the location, the Commissioner considers that it is undesirable for a mahjong/tin kau parlour to be located in the vicinity of educational institutions because the presence of such a parlour would cause concern to parents of the students as the parlour would inevitably attract undesirable elements to the locality. The Commissioner also considers it socially undesirable for a mahjong/tin kau parlour to be located near to religious institutions."

13. In fact the objection to have a mahjong/tin kau parlour near the two kindergartens in question formed the main reason for rejecting the application of the applicant by both the Commissioner and the Board. In the hearing before the Board, the aforesaid policy was repeated. In the Reasons for the Decision of the Board, the Vice-Chairman of the Board stated,

"In our view, the existence of the two schools are sufficient reasons for not granting the licence."

14. The Vice-Chairman of the Board further stated,

"In our view, even in a commercial place like Hong Kong, it is only too plain to see that it is undesirable to place a mahjong parlour right next to a school and in close proximity to another. Schools are places of learning. Children learn to be decent human beings. How could teachers instil any sense of right or wrong in children in their formative years when next to the school's doorsteps, there is an establishment which caters for the gambling habits of adults ?"

15. The applicant suggested that the Commissioner and the Board had not taken into consideration all the relevant factors and had taken into consideration irrelevant matters. With respect, there was no justification whatsoever in such attack. From the record of proceedings both before the Commissioner and the Board and their reasons for decision, it was clear that both the Commissioner and the Board were at great pain to deal with all the matters raised. They had considered fully the factors for and against the applicant before reaching their decisions. They emphasis that it was socially undesirable to have educational institutions and gambling establishments in close proximity to each other. In that regard, it is perhaps worth mentioning that the said premises is right next to one of the kindergartens in question.

16. Mr. Ross, on behalf of the applicant did not argue that the decision of the Commissioner and the Board was Wednesbury unreasonable. He suggested, however that the decision of the Commissioner and the Board on the effect of presence of the mahjong parlour on the children was not supported by an expert evidence.

17. With respect, they did not need expert's view on such matter. Every parent, every teacher and every member of the community would be entitled to their views and I am sure that their views would be no different from that reached by the Commissioner and the Board. After all the Commissioner and the Board were to be representative of the community in that they would consult various concerned parties before forming their judgment on the matter in issue.

18. It was suggested that there were already other establishment of entertainment in the vicinity, including Karaoke Lounge, sauna parlour and the like. Quite apart from the fact that those other establishment were all on upper floor, their existence did not mean that more should be added.

19. One must not ignore that the said premises was right next to one of the kindergartens and very close to the other. One can well imagine what it would be like when students were lining up waiting for the school buses before and after school. They could well be lining up just outside a mahjong parlour. One can also imagine how parents would feel waiting for their children to finish school. They might well have to wait outside a mahjong parlour. Parents would probably not be tempted to go inside to have some "fun". But it could be very embarrassing for parents to have to wait for their children outside such an establishment every day.

20. There are good reasons for not allowing mahjong parlour or similar establishment to be right next to schools or very close to it. No one can have any legitimate complaint about such a policy.

21. Mr. Ross mentioned that the applicant was prepared to be bound by necessary conditions relating to sound proofing, business hours and means of admission and security. But no condition could hide the fact that it was to be a mahjong/tin kau parlour.

22. Mr. Ross also mentioned the exercise of the discretion. If the court have any discretion in the matter, it certainly would not exercise it in favour of a mahjong parlour to the detriment or even possible detriment of hundreds or thousands of very young children.

23. I have considered carefully the background of the matter and the points raised by counsel. I have no doubt that both the Commissioner and Board had approached the matter with great care. They had afforded the applicant the chance to present every possible argument that could be advanced on her behalf. The fact remained, it was not suitable for a mahjong/tin kau parlour to be right next to one kindergarten and in very close proximity to another one.

24. In the light of the entire background of the case, the decision of the Commissioner and the Board was a correct one. There application was without merit and had to be dismissed with costs.

(W. Yeung)

Judge of the High Court