LI TAK MING v. SECRETARY FOR JUSTICE

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 78
(Civil)

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J U D G M E N T

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Mortimer, V.-P. :

1. This is an appeal by the applicant against Sears J's refusal to grant leave for judicial review of a decision of the Commissioner of Police to refuse the applicant's renewal of a firearm licence under the Firearms and Ammunition Ordinance (Cap 238). The applicant asks for three decisions to be reviewed, each on the same basis:

(1) a decision to cancel his licence rather than to renew it on 17 May 1997;

(2) a decision not to revoke that cancellation on 17 July 1997

(3) the dismissal of his appeal by the Administrative Appeals Board on 13 November 1997.

The background

2. The applicant has been a member of the Hong Kong Rifle Association since 1991. On 17 May 1990 he was issued with a licence for the possession of a firearm. That licence was renewed annually until 17 May 1997 when he applied for its renewal by attending the Arms Licensing Office at the Hong Kong Police Headquarters. He was issued with a demand note for the fee which he paid. The licence for possession was renewed. Then the staff gave him a declaration form to be filled in but he refused to fill it in. So the person in charge took back the renewed licence and cancelled it.

3. The reason why the applicant refused to give the information in the form and sign it was that he contends that the form was not a prescribed form as required by s.32 of the Ordinance. There followed correspondence between the applicant and the police. In due course he was invited to fill in a slightly revised declaration in which two questions were omitted. But again he refused to give the information requested on the form or to sign it. Consequently, on 17 July 1997 the Commissioner of Police through his officer refused to change the original decision. Thereafter the applicant appealed to the Administrative Appeals Board and his appeal was dismissed.

4. Section 32 is the section which deals with the renewal of licences. It reads as follows:

"32. Renewal of Licences

Upon application made to him in the prescribed form, and payment of the prescribed fee, the Commissioner may renew a licence for such period as he thinks fit, or may refuse to renew the licence."

That section gives the Commissioner power upon application in the prescribed form and payment of the prescribed fee to renew the licence or he may refuse to renew the licence. It is a discretionary power. At the most simple level the Commissioner may ask for information from a person who wishes to renew the licence and if that person refuses to give relevant information, then clearly the Commissioner may refuse to renew the licence.

5. It is not necessary for me to emphasise the important public duty which the Commissioner carries out in exercising these powers. The Commissioner rightly has a policy which is simply that on renewal he has to be satisfied that the licensee is (a) still fit and proper person to hold the licence and (b) still has a legitimate need to possess each and every firearm under licence.

6. The applicant recognises that the Commissioner of Police has a duty to make enquiries. He does not object to giving relevant information to the Commissioner's appointed officer but he simply refuses to fill in the information on the form he was given for reasons that I will consider in a moment.

7. The consequence is, having refused to give the Commissioner information which is relevant to the Commissioner's decision whether to renew the licence or refuse to renew it, it could not possibly be said that the Commissioner was acting unlawfully or irrationally in refusing to renew. At that level, therefore, without going further, this application must be refused.

The statutory background

8. Turning to consider in a little more detail, the statutory background and the point raised by the applicant as to whether the form which he was asked to fill in and sign was a prescribed form under s.32. His main point is that this form is not the prescribed form under the legislation and that there is no such prescribed form. If he is right, this would have the effect that the Commissioner would have no power under s.32 to renew a licence.

9. Section 52 of the Ordinance gives the Chief Executive-in-Council power to make regulations. Section 52(1)(b) gives the Chief Executive-in-Council power to make regulations "prescribing forms for the purposes of this Ordinance". In the exercise of powers under that section, the Firearms and Ammunition Regulations were made. The relevant regulation is Regulation 9 which reads:

"Renewal of Licences

On application for the renewal of a licence under section 32 of the Ordinance shall be made in such form and contain such particulars as the Commissioner may from time to time determine."

10. The Chief Executive-in-Council delegated the power to make the appropriate form to the Commissioner under that Regulation. It may be said that it is somewhat uncertain in its terms because the Commissioner can change the form and the particulars as required from time to time. But for my part, I am satisfied, as was the judge below, that that Regulation gives the Commissioner of Police the power to determine this form which the applicant was asked to fill in and that that form is indeed the prescribed form under s.32. It can be said with point that the drafting of these provisions is less than ideal but nevertheless in order to give effect to s.32 that is my decision.

The form itself

11. It is necessary to consider briefly the form which the Commissioner has decided upon. The reason is this. The applicant complains about some of the questions, for example, whether he has ever suffered from mental illness. He says that that sort of question interferes unnecessarily with his privacy, and if the Commissioner has doubts on this matter, he has power under Regulation 4 to require an applicant to undergo medical or psychiatric tests. But with respect that is nothing to the point. Clearly, it is relevant for an applicant to be asked in this type of form, information upon his mental wellbeing. He complains also that under s.47 of the Ordinance, he may commit an offence if he fills in the form even recklessly. But again it is necessary to have some sanction to ensure that the information which is given is accurate.

12. The only question is whether the Commissioner is exercising his powers reasonably in asking relevant questions in order to fulfil his duty to ensure that the applicant is still a fit and proper person and has a legitimate need. For my part, having looked at the questions in both the declaration that he was asked to complete and the amended form with which he was later provided, they are all relevant to those two questions.

13. In these circumstances there is no basis whatsoever for this Court to say that the applicant should have leave to judicial review the decisions of which he complains.

Godfrey, J.A.:

I agree.

14. It seems that at one time the Commissioner of Police adopted a policy of automatic renewal of firearms licences, but later came to the view that that was not appropriate. It is clear, from section 32 of the Firearms and Ammunition Ordinance, Cap. 238, that the legislature intended to confer a discretion upon the Commissioner, in relation to the renewal of firearms licences to renew a licence or to refuse to renew a licence. If the Commissioner sees fit to ask an applicant what he considers to be relevant questions before deciding whether or not to renew the applicant's firearms licence, he is, in my judgment, perfectly entitled to do so. If he chooses to ask those questions in written form, and to ask the applicant to verify the answers, he is, in my judgment, perfectly entitled to do that as well. The questions asked of the applicant here were clearly relevant questions; and the supplementary information and declaration form which the applicant was invited to complete contains, in my judgment, nothing beyond reason. The refusal of the applicant to give the information asked of him in written form was, in my judgment, a refusal which entitled the Commissioner to exercise his discretion against renewing the applicant's licence (and to revoke or cancel the licence in fact granted to the applicant in the absence of the required information).

15. I say nothing about the point made by the applicant that the application for renewal must itself be made in a prescribed form. Even if (as appears to be the case) there is no such prescribed form, that deficiency could not lead to any relief by way of judicial review of the decisions of which the applicant actually complains.

16. Accordingly I too would dismiss this appeal.

Leong, J.A.:

I agree. Regulation 9 made under Section 52 of the Firearms and Ammunition Ordinance provides that an application under Section 32 for renewal of a firearm licence shall be in such form as the Commissioner may from time to time determine. The Commissioner is given such power to determine the form because the Commissioner is the suitable authority to determine what information is necessary to enable him to exercise his discretion in granting firearm licences. In considering an application for renewal, the Commissioner is required to be satisfied that the Applicant is a fit and proper person and the Applicant still has a legitimate need to possess firearms, before the licence is renewed. The form the Applicant was required to fill in was to provide relevant information which would enable the Commissioner to consider these two matters. Without such information, the Commissioner would not be in a position to reasonably and properly assess the two matters to reach a fair decision. The Commissioner was entitled to request such information whether it should be provided in a prescribed form or otherwise. In the absence of the Applicant's provision of such information, the Commissioner is entitled to refuse to renew the licence. The appeal should be dismissed.

Mortimer, V.-P.:

The appeal is therefore dismissed.