THE ATTORNEY GENERAL v. TSANG YUNG-CHUN

IN THE COURT OF APPEAL

Magistracy Appeal

1995, Nos.811 & 812

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J U D G M E N T

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

1. This is a case stated from Mr. Norman Yeung sitting as a Temporary Magistrate at South Kowloon Magistracy. The respondent Madam Tsang Yung-chun had been charged with contraventions of the Amusement Games Centre Ordinance Cap.435.

2. Magistracy Appeal No. 811 of 1995 arises out of a charge that on 17th May 1994 at the Space Track Game Centre at the basement of No.64-66A Kimberley Road, Tsimshatsui in Hong Kong, she did operate, keep, manage or have control of the centre, an amusement game centre under Licence no.10719, in contravention of the Licence Condition no.2 as specified in the licence in that the centre was found to be in operation after 12 mid-night contrary to sections 19(1)(a) and 19(5) of the Amusement Game Centres Ordinance. It was charged in the alternative that on 17th July 1994, at the Space Track Game Centre at the Basement No. 64-66A Kimberley Road, Tsimshatsui in Hong Kong, an amusement game centre under Licence No.10719, was the licensee of the centre where a condition, namely condition no.2 as specified in the licence, was contravened in that the centre was found to be in operation after 12 mid-night, contrary to Sections 19(3) and 19(5) of the Amusement Game Centres Ordinance, Cap.435.

3. Magistracy Appeal No. 812 of 1995 arises out of a charge that on 15th July 1994, at the Space Track Game Centre at the Basement, No.64-66A Kimberly Road, Tsimshatsui in Hong Kong, she did operate, keep, manage or have control of the centre, an amusement game centre under Licence No. 10719, in contravention of the licence condition no.10 as specified in the licence in that there were in the centre 7 number of machines in excess of 68 number as specified in the licence, contrary to Sections 19(1)(a) and 19(5) of the Amusement Game Centres Ordinance. It was charged in the alternative that on 15th July 1994, the Space Track Game Centre at the Basement, No.64-66A Kimberley Road, Tsimshatsui in Hong Kong, an amusement game centre under Licence No.10719, was the licensee of the centre where a condition, namely condition no.10 as specified in the licence, was contravened in that there were in the centre 7 number of machines in excess of 68 number as specified in the licence, contrary to Sections 19(3) and 19(5) of the Amusement Game Centres Ordinance, Cap.435.

4. The Temporary Magistrate dismissed both informations holding that the condition was ultra vires. He has stated the case to be answered by this court in the following terms:

"7. The question of law arising on the above statement for the opinion of this court therefore is whether, on the true construction of Section 23(2) of the Amusement Game Centres Ordinance, I erred in holding that the conditions imposed by the Commissioner were ultra vires and void on the ground that the Commissioner's power to impose conditions under that section on an existing licence presupposes the existence of at least one valid condition having been imposed on the licence under the Miscellaneous Licences Ordinance."

5. The Case Stated in Magistracy Appeal No. 811 set out the following facts admitted by the parties pursuant to s.65C of the Criminal Procedure Ordinance Cap.221:

"(a) The respondent was the licence holder of an amusement game centre licence no.10719 issued on 2nd November 1993 under the Miscellaneous Licence Ordinance (Chapter 114 in respect of the amusement game centre the Space Track Game Centre ('the centre') at the Basement, No.64-66A Kimberley Road, Tsimshatsui in Hong Kong;

(b) On or about 1st December 1993, the respondent received by way of registered post a letter from the Commissioner for Television and Entertainment Licensing Authority ('the Commissioner') dated that date enclosing a list of licence conditions for amusement game centres for customers who had attained the age of 16 years;

(c) The said letter was sent pursuant to Section 23(2) of the Amusement Game Centres Ordinance (Chapter 435), and the letter stated that the Commissioner had imposed the conditions shown on the enclosed list on the respondent's licence with effect from 1st December 1993;

(d) Condition no.2 of the said list of the licence conditions reads, 'No machine or device shall be operated between the hours of 12 mid-night and 8:00a.m. daily. Shorter permitted hours of operation may be imposed by the Commissioner when circumstances require.'

(e) At about 2:10a.m. on 17th May 1994, a party of police officers including police constable Chan Kam-fai (PC 10626) attended the centre. PC 10626 found several male customers playing game machines in the centre which was still open for business at that time. A male person, Lee Kam-por, was found to be the manager in charge of the centre at that time."

6. The case stated in No. 812 set out the following admitted facts:

"(a) The respondent was the licence holder of an amusement game centre licence no.10719 issued on 2nd November 1993 under the Miscellaneous Licence Ordinance (Chapter 114) in respect of the amusement game centre the Space Track Game Centre ('the centre') at the Basement, No.64-66A Kimberley Road, Tsimshatsui in Hong Kong;

(b) On or about 1st December 1993, the respondent received by way of registered post a letter from the Commissioner for Television and Entertainment Licensing Authority ('the Commissioner') dated that date enclosing a list of licence conditions for amusement game centres for customers who had attained the age of 16 years;

(c) The said letter was sent pursuant to Section 23(2) of the Amusement Game Centres Ordinance (Chapter 435), and the letter stated that the Commissioner had imposed the conditions shown on the enclosed list on the respondent's licence with effect from 1st December 1993;

(d) Condition no.10 of the said list of the licence conditions reads, 'Only those types and number of machines or devices specified on the licence and the types of games in the approved list of games attached to the licence shall be installed or placed for use or operation in the premises.'

(e) At about 9.25p.m. on 15th May 1994, a party of police officers including police constable Lee Kin-hung (PC 23192) attended the centre. PC 23192 counted the number of machines in the centre and he found a total of 75 machines installed there."

7. Prior to 1st December 1993, amusement game centre licences had been issued by the Commissioner for Television and Entertainment under the Miscellaneous Licences Ordinance and the regulations thereunder. Mandatory conditions were imposed by Reg.152 which reads as follows:

"152. (1) Every person holding a licence to keep an amusement game centre shall observe the following conditions, namely -

(a) that except with the written permission of the licensing authority endorsed on the licence, the licensee shall not transfer, lend or hire his licence to any person;

(b) that the licensee shall not permit any machine or device of a type specified in paragraph (a), (b) or (c) of the definition of 'amusement game centre' or the Third Schedule to the Ordinance which is installed or placed in the amusement game centre for the purpose of amusement recreation or entertainment to be operated between the hours of 2 a.m. and 8 a.m. daily.

and such special conditions as the licensing authority may in his discretion impose.

(2) Every condition specified in or imposed under paragraph (1) shall be endorsed on the licence."

8. In The Attorney General v. Chan Foo (1992) HKLR 438, this court held that any special conditions which had not been made by regulation, as required by s.3 of the Ordinance, were ultra vires. The court at p.437 made the following observation:

"A feature of these 'special conditions', the significance of which is difficult to comprehend, is that 'special conditions' (1) and (2) deal, except for changes of wording which have no significance, with exactly the same matters as are already dealt with by the two conditions specified in Reg. 152(1)(a) and (b). We are at a loss to understand why it should be thought necessary that these be endorsed on the licence both as conditions and as 'special conditions'."

There was never any suggestion in that decision that the mandatory conditions in Reg.152 were ultra vires. Indeed they could not have been as these were plainly made, as s.3 requires they must be, by regulation. The licence issued to Madam Tsang on 2nd November 1993 under the Miscellaneous Licences Ordinance must necessarily have had endorsed thereon the two mandatory conditions. This was, therefore, the licence, so limited, which she held on 30th November 1993.

9. On 1st December 1993, those provisions of the Miscellaneous Licences Ordinance and those regulations thereunder which dealt with the licensing of amusement game centres were repealed and replaced by the Amusement Game Centres Ordinance Cap.435 and by regulations made thereunder. Provision was made for the continuation of existing licences in s.23 of that Ordinance:

"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 the Ordinance.

(2) The Commissioner may, in respect of any licence to which subsection (1) applies, by notice in writing served upon the licensee either personally or by registered post, impose any condition in addition to or instead of any condition of such licence as he thinks fit."

10. Madam Tsang appears in person today but the argument which was advanced on her behalf below, relying upon The Attorney General v. Chan Foo, was that all conditions attaching to her existing licence pursuant to the Miscellaneous Licences Ordinance were ultra vires, and that as a result there were no conditions which the Commissioner could add to or vary by further conditions. This argument is plainly wrong as the licence when issued did have these valid mandatory conditions attached thereto. During the hearing before us a variation of the above argument was suggested namely that once Reg.152 of the Miscellaneous Licences Regulations was repealed, the mandatory conditions imposed by that regulation ceased to exist. We are satisfied that there is no merit in such an argument. It is true that the regulation which imposed the mandatory conditions was repealed but any licence already issued, together with whatever limitations validly placed upon it by virtue of Reg.152, must, we are satisfied, have continued in force by virtue of s.23(1). We reject any suggestion that the licence somehow survived without the limiting mandatory conditions subject to which it was issued. We are satisfied that even if the temporary magistrate was right in holding that the Commissioner's power to impose conditions on a licence under s.23(2) presupposes the existence of at least one valid condition, and we make it plain that, as that matter was not argued before us, we make no finding in that regard, he was wrong in holding that there was no valid existing condition. We are satisfied that there were valid existing conditions and that the Commissioner was entitled on 1st December 1993 to impose further conditions under the power given him by s.23(2) and that these were valid and binding.

11. We answer the questions posed in each case stated in the affirmative.

12. The matters, together with the opinion of this court, are remitted to the Temporary Magistrate for determination.