RE LEE SUK PING

H.C.M.P. No. 2173 of 1987

HEADNOTE

PER CURIAM

                Role of the High Court in preventing flagrant breaches of the criminal law - injunctions can be granted in appropriate cases.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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JUDGMENT

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1. This is an application for Judicial Review to quash a Resolution of the Regional Council Liquor Licensing Board made on the 15th July this year when the board refused an application by the applicant for a liquor licence. A number of grounds are relied upon by the applicant in support of the judicial review.

2. In January 1987, the applicant together with some gentlemen formed a partnership to run what was called the "Glasgow Pub & Restaurant" 15 Kam Fai Building, Yuen Long in the New Territories; the premises were established as a restaurant and pub, and decorated for that purpose. It was the decorator who put in an application for a liquor licence. Not surprisingly, it was wrongly made and was never entertained by the Licensing Board. Nevertheless, the Glasgow Pub opened and obviously did very substantial business; a large number of people went there and stayed until the early hours of the morning drinking alcohol. The local inhabitants were very upset and began to complain to the police. The police took action and warned those who were operating this restaurant that they were acting contrary to the law. The advice of the police was disregarded. The Glasgow Pub continued to sell drink, stay open until the early hours of the morning; fights took place and severe disturbance was caused. Summonses were issued, but they did not deter the operators. I would like to take this opportunity to draw to the attention of the Attorney General and those in his Chambers an important matter. The District Council and the other Government Departments often have to deal with matters where there has been a deliberate breach of the law and they take proceedings under the relevant Ordinance. The Magistrates' Courts in Hong Kong are very busy and often these cases take a little time to come to Court; the penalties which are imposed do not deter the person who is acting unlawfully. It is the High Court which has the power under its inherent jurisdiction to secure by injunction obedience to the law of the land. It is the High Court which has the power to prevent flagrant breaches of the law, and even threatened breaches. That has been recognised for some time in England see for e. g. Stafford Borough Council and Elkenford Ltd. ⁽¹⁾ and Hammersmith London Borough Council v. Magnum Ltd. ⁽²⁾ where the Master of the Rolls Lord Denning said:

"The High Court has inherent power to secure by injunction obedience to the law by everyone in the land, whenever a person with a sufficient interest brings the case before the Court."

 

3. The House of Lords in Stoke-on-Trent Council v. B & Q Ltd. ⁽³⁾ approved this principle. Lord Templeman in his speech at p. 776 said "The right to invoke the assistance of the Civil Court in aid of the criminal law is a comparatively modern development."  Because the High Court can impose sanctions on a wrongdoer which are far greater and wider than the Magistrates' Court, such assistance should only be utilised where the law is being deliberately and flagrantly flouted.

4. In such a crowded environment as Hong Kong, nuisances, noise and disturbance can cause serious harm to the general public. Further the control of, for example, unlicensed food hawkers who cause potential danger whether by means of obstruction or hygiene, is from a public point of view of importance. In the ordinary case, the criminal law provides the appropriate remedy, but there are occasions when the civil law can be utilised. The conditions in Hong Kong are not the same as in England and the general public can suffer greatly  by the acts of wrongdoers. In the instant case, the operators of this 'pub' were selling liquor in defiance of the provisions of the Ordinance and in my judgment, this Court could have stopped them quickly and effectively.

5. I turn back to this application. At the end of March 1987, the applicant made an application for a liquor licence to the Licensing Board in accordance with the appropriate regulation. That is made on a specified form and the power of the Board is found in Regulation 17 of the Dutiable Commodities (Liquor) Regulations; the Board may refuse any application, or may grant it absolutely, or subject to such conditions in addition to those specified in Form 2 as it thinks fit. Form 2 is a statutory form and sets out a number of standard conditions which are always imposed on any licence holder. The Board wrote to the applicant and said that a hearing was going to be given for her and set out the gist of the objections which had been made by the public and by the police. There is no reference in that letter to the previous convictions which one of her partners had. The lady applicant was a housewife, and it was abundantly clear that she was to have no supervisory role whatsoever in this restaurant. She said she would only visit it two hours or so twice a week. The real management was to be entrusted to a man with previous convictions; this is an important consideration for the Board to take into account, as it is dealing with matters of public order.

6. A hearing was arranged; there is no obligation on the Liquor Licensing Board to have such hearings, but it is in accordance with the modern approach of open law and open government, so that members of the public have an opportunity to air all relevant matters. The Board acts properly in the public interest in having these hearings. At that meeting, not only was the applicant present, but she was permitted to have counsel and solicitor. Mr. Philip Wong, who appears today, appeared in front of this committee and had ample opportunity to address argument and make submissions on all the matters.

7. At the hearing, the previous convictions of the person who has now become the nominated manager were mentioned. Although, as I said, they are not set out in the earlier letter in June, they were mentioned at the hearing and Mr. Wong submitted that they were irrelevant. The decision was a decision to refuse the licence and no reasons were given; no reasons have to be given, but in accordance with modern practice when applications for Judicial Review are made, the appropriate body should provide the Court with the reasons for their decision, see for e.g. R. v. Lancashire County Council, ex parte Huddleston ⁽⁴⁾. There has been an affidavit sworn by the Assistant Secretary (Licensing), Mr. Man Ching Yee and he sets out all the relevant matters, and provides the minutes of the hearing. It is clear that the main complaints against this applicant were first the conduct of running this restaurant unlicensed, secondly her inability to supervise, and thirdly the nominated manager being totally unfit to hold such a licence.  Mr. Wong complained because he says the convictions were spent convictions under the Rehabilitation of Offenders Ordinance (Cap. 297) and should not have been referred to. That Ordinance only applies to what has been called by Mr. Marshall the first conviction only (S2). Further Section 4 of the Ordinance specifies that the protection afforded by Section 2 does not apply to certain proceedings; S4(1) (c) - "proceedings relating to a person's suitability to be granted or to continue to hold, any licence, permit or dispensation, or to be registered, or continue to be registered, under any law."

8. The proceedings, which are now being challenged, are such proceedings. As the applicant was saying that it was her nominated manager who would be actually supervising the premises, then it was relevant for his suitability to hold a licence to be examined. Her application was in essence a sham, as the real applicant was the manager. He was thoroughly unsuitable and so a respectable housewife became the applicant.

9. The hearing was conducted fairly and I can discover no breach of the rules of natural justice. As I have said before - see R v. Commissioner of Inland Revenue ex parte Chun Yuet Bun October 15th 1987 - this Court does not act in an appellate capacity, it need only examine the process of decision to see whether or not it is flawed.

10. I can see no ground for interfering with the decision of the Licensing Board; I therefore refuse this application.

(1)    [1977] 1 WLR 324

(2)    [1978] 1 WLR 50

(3)    [1984] 1AC 754

(4)    [1986] 2 All ER 94l