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HCAL 18/2015
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 18 OF 2015
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| BETWEEN |
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LI WAI HUNG CESARIO |
Applicant |
and |
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ADMINISTRATIVE APPEALS BOARD |
Respondent |
| and |
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PUBLIC OFFICER appointed by the SECRETARY FOR HOME AFFAIRS |
Interested Party |
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| Before: Hon Zervos J in Court |
| Date of Hearing: 4 September 2015 |
| Date of Judgment: 7 October 2015 |
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JUDGMENT
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Introduction
1. The applicant, Li Wai Hung Cesario, made an application for a licence to operate premises as a mahjong/tin kau parlour (mahjong parlour). His application was rejected and he took the matter on appeal to the Administrative Appeals Board (the Board) which upheld the decision. Both the rejected application and the failed appeal were founded on the conclusion that the location where the proposed premises were situated and the applicant as a licensee were not suitable.
2. By a notice of application dated 31 January 2015, and with the leave of Au J granted on 7 May 2015, the applicant applies for judicial review of the decision of the Board dated 24 December 2014 upholding the decision of the Public Officer appointed by the Secretary for Home Affairs (the Public Officer) dated 12 May 2014 to refuse the applicant’s application for a grant of a mahjong licence. By his application, the applicant seeks an order of certiorari to bring up and quash the Board’s decision and a direction to remit the matter to a differently constituted Board for rehearing.[1]
3. The applicant challenges the legality and rationality of the Board’s decision. Critical for this purpose are the statutory provisions that determine the Board’s jurisdiction and the guidelines that have been issued in determining whether or not to grant a mahjong licence and how they were considered and applied in the present case when determining the suitability of the applicant as a licensee and the location of the premises for which the licence was sought.
Background
4. On 27 May 2013, the applicant submitted an application for a licence to the Public Officer on behalf of Sun Wong Mahjong Entertainment Limited in respect of the premises at Shops A, B and C, G/F, Mansun House, 163-173 Portland Street, Kowloon (the premises).[2] It was accompanied by a number of documents which sought to show that the application meet the requirements necessary for it to be granted.[3] On 10 June 2013, the applicant revised the application by substituting himself as the proposed licensee.[4]
5. Upon receipt of the application, the Public Officer, who was responsible for handling the matter, called for reports and comments from relevant authorities and interested parties. For the purpose of evaluating the application, on 10 July 2013 the police conducted an interview of the applicant and took a signed statement from him in the presence of his solicitors.[5] The police submitted a report by way of memorandum to the Public Officer dated 8 October 2013 where they referred to the interview with the applicant and commented that it revealed that he did not have a thorough understanding of his role as a licensee. They also commented on the location of the premises, noting that it was in close proximity to three educational centres and that there were already 11 mahjong parlours within the Mongkok District. The police expressed doubts as to the applicant’s ability to supervise the premises due to his inadequate experience and lack of knowledge in the field and they also pointed out that the existence of 11 existing mahjong parlours in close proximity to the proposed premises would pose a threat to local law and order because of the added burden it would place on law enforcement. The police objected to the application.[6]
6. By letter dated 6 December 2013, the Chief Officer (Licensing Authority) of the Home Affairs Department (Chief Officer) informed the applicant of the intention to refuse the application for the following two reasons. First, the applicant was not suitable to hold a mahjong licence in view of his inadequate knowledge and lack of experience required in managing a mahjong parlour, and his inadequate understanding of the role of a licensee. Secondly, the proposed location was not suitable for the establishment of a new mahjong parlour because of its close proximity to five other existing mahjong parlours and the undue concentration of mahjong parlours in the locality that would result.[7] As a consequence, the applicant was invited to make representations within 14 days from the date of the letter which was extended on two occasions to 17 February 2014.
7. The solicitors for the applicant by letter dated 7 January 2014 when seeking an extension of time raised certain queries with the Chief Officer about the definition of “suitable or suitability”, “close proximity” and “undue concentration” in the Guidelines which were answered by return mail dated 17 January 2014.[8]
8. The applicant through his solicitors made representations by written submission dated 17 February 2014 which attached 12 enclosures, including personal particulars of the applicant, maps of the locality displaying mahjong parlours and entertainment establishments within 100 metres and a business plan. The representations essentially addressed the suitability of the applicant as a licensee and of the location of the premises as a mahjong parlour.[9]
9. On 12 May 2014, the Public Officer issued a written notice of decision with a statement of reasons under sections 22(5) and 22(5A) of the Gambling Ordinance, Cap 148, refusing the application. The application was rejected for the reasons as stated in the letter of 6 December 2013.[10] The notice was served under cover of letter dated 12 May 2014 from the Chief Officer which also contained the comments of the Public Officer to the applicant’s representations that he had previously made on 17 February 2014.[11]
10. On 20 May 2014, the applicant lodged an appeal to the Board on the grounds that the Public Officer erred in deciding that the applicant was an unsuitable person to hold a mahjong licence and that the proposed location were unsuitable premises for the establishment of a mahjong parlour.[12] As required a respondent’s statement (from the Public Officer) dated 8 July 2014 was filed with the Board together with all relevant documents.[13] The applicant through his solicitors in response filed a statement dated 5 August 2014.[14]
11. The Board consisting of Mr Eugene Fung Ting-sek, SC, as Chairman, Ms Hattie Cheng Kin-hei and Mr Richard Ho Kam-wing, heard the appeal on 16 October 2014. The applicant was represented by Mr Philip Dykes SC, together with Mr James McGowan, and the respondent was represented by Mr William Liu, Senior Government Counsel. Mr Dykes for the applicant filed written submissions and provided a list of authorities as did Mr Liu for the respondent.[15] The submissions of the applicant before the Board focused on arguments similar to what has been advanced in these proceedings where it was complained that the Public Officer erred in law or acted unreasonably in coming to his determination as to the suitability of the applicant and of the location of the premises.
12. On 24 December 2014, the Board dismissed the appeal for the reasons contained in its written decision. The Board did not accept that the Public Officer was wrong or unreasonable in coming to the conclusion that the proposed location was unsuitable for the establishment of a mahjong parlour and that the applicant was not suitable to hold a mahjong licence.[16] By its decision it confirmed the decision of the Public Officer.
Relevant legislation
13. The application for a licence to operate a mahjong parlour is governed by the Gambling Ordinance. Section 22(1)(b) provides that the Public Officer “may license premises for the playing therein of games in which mahjong or tin kau tiles are used.” Section 22(5B) provides that “any person aggrieved by a decision of the public officer appointed by the Secretary for Home Affairs made in respect of him under this section may, within 28 days after receiving notice of the decision, appeal to the Administrative Appeals Board.”
14. The provisions governing an appeal are contained in the Administrative Appeals Board Ordinance, Cap 442. Appeals to the Board are required to follow the steps and procedure as stipulated under the Ordinance. This requires the respondent, in this instance, the Public Officer, to furnish information in a written statement relating to the decision under appeal, which should set out the reasons for the decision; the policy, if any, or the particulars of any evidence or other things relied upon by the respondent; the findings on material questions of fact relating to the decision; whether or not the appellant was made aware of the aforesaid matters when such decision was made; and a description of every document held by the respondent which is considered by him to relate to the appeal.[17]
15. The composition of the Board consists of a Chairman or a Deputy Chairman who shall preside and two persons from a panel established under the Ordinance for this purpose.[18] The persons appointed to chair the Board must be qualified for appointment as District Judges.[19]
16. The hearing of an appeal is required to be conducted in public unless there are special circumstances not to do so.[20] The parties to the appeal may be legally represented at the hearing.[21]
17. The powers of the Board are very wide. Under subsection 21(1) the Board may:
“(a) subject to this Ordinance and to rules made by the Chairman under section 30 determine its own procedure;
(b) receive and consider any material, whether by way of oral evidence, written statements, documents or otherwise, whether or not such material would be admissible in evidence in civil or criminal proceedings;
(c) by notice in writing signed by the Secretary, require any person to attend before it at any hearing and to give evidence and produce documents;
(d) administer oaths and affirmations;
(e) examine on oath, affirmation or otherwise any person attending before it and require such person to answer all questions put by or with the consent of the Board;
(f) determine the manner in which the material referred to in paragraph (b) shall be received;
(g) with the consent of the parties to the appeal, determine the appeal without an oral hearing on the basis of written submissions only;
(h) if it appears to the Board that the respondent has reversed the decision appealed against, determine the appeal summarily in favour of the appellant without a hearing and without calling on anyone to attend or to appear before it;
(i) adjourn the determination of any appeal as it may deem fit;
(j) subject to subsection (2), confirm, vary or reverse the decision that is appealed against or substitute therefor such other decision or make such other order as it may think fit;
(k) subject to section 22, make an award to any of the parties to the appeal of such sum, if any, in respect of the costs of and relating to the appeal;
(l) pay an allowance for the expenses of any witness summoned under this Ordinance;
(m) do all things—
(i) ancillary to the powers conferred by this section; or
(ii) reasonably necessary for the discharge of its functions under this Ordinance.”
18. Every question before the Board is to be determined by the opinions of the majority of members hearing the appeal except for a question of law which is to be determined by the chair of the Board.[22] The Board is entitled to determine the merits of the appealed decision and under subsection 21(1)(j) it can confirm, vary or reverse, or substitute it with its own decision, or send the matter back to the respondent for consideration as ordered. By subsection 21(2), the Board in the exercise of these powers is obliged to have regard to any relevant statement of policy which the appellant would have been aware. By subsection 21(3), the board has the additional power which is not normally seen with statutory appeal boards to send back the case to the respondent for consideration of such matter as ordered.
19. The decision of the Board must be in writing and when necessary state its findings on material questions of fact and the basis for them. This is stipulated under section 25(1) which reads:
“The Board shall give reasons in writing for its decisions, and those reasons shall include its findings on material questions of fact and a summary of the evidence or other material on which those findings were based.”
Relevant policy
20. The relevant policy issued by the Secretary for Home Affairs for the grant of a mahjong licence is contained in a document entitled “Brief Policy Guidelines on issue of Mahjong/Tin Kau Licence” (the Guidelines). The Guidelines set out six major factors that will be considered when determining an application and this is explained as follows:
“Each application will be considered on its own merits. However, the public officer will consider major factors listed in (i) to (vi) below.
(i) Cogent need for a lawful gambling outlet
Government’s policy is that a mahjong/tin kau parlour (MJP) should, as a general rule, be allowed to be set up only if a cogent need for such an outlet is established.
(ii) Suitability of the applicant
The applicant should be found suitable for managing a MJP.
(iii) Suitability of the proposed premises
The proposed premises should be found suitable for use as a MJP from structural and means of escape points of view, as well as in terms of the lease of the land.
(iv) Suitability of the proposed location
The location of the proposed premises should be found suitable. As a general rule, the proposed MJP should not be located within a pure residential neighbourhood or in close proximity to an educational or religious institution or an institution or facility catering to children and youths. Besides, the establishment of the proposed MJP should not result in an undue concentration of MJPs in the locality.
(v) Local reaction
The public officer would assess the local reaction to the establishment of the proposed MJP and the potential objection if the application is approved, with the assistance of the relevant District Officer.
(vi) Sympathetic consideration for a “relocation” case
An application may be considered with some degree of sympathy if a licensee relocates his premises to a site within the immediate neighbourhood, if the application is made when his licence is still in force, and if the new application does not lead to any increase in the number of gaming tables. In such cases, however, the other considerations as stated under these guidelines will continue to apply.”[23]
Grounds for review
21. The applicant lists six grounds for review. Before I address them, I should say that the matters complained about under the first five grounds for review were matters that were argued before the Board and fully addressed in its decision. The first three grounds concern the issue of the suitability of the location of the premises as a mahjong parlour. The next two grounds concern the suitability of the applicant as a licensee. The final ground which is a new point concerns the conduct of the appeal hearing and the complaint that it was not a hearing de novo.
22. Under the first ground, it is complained that the Board was inconsistent and therefore irrational in defining “locality” and “close proximity” when assessing whether the proposed mahjong parlour would result in an “undue concentration” of mahjong parlours in the locality. It is also complained that the Board failed to give adequate reasons in addressing this issue. Under the second ground, it is complained that the Board’s decision was illegal because it failed to take into account relevant considerations by only using the map provided by the Public Officer in relation to the distribution of the mahjong parlours in the area and ignored the applicant’s arguments regarding the degree of increase in gaming tables and the relative floor space involved by the proposed mahjong parlour. It is also complained that the Board failed to give adequate reasons on these matters. Under the third ground, it is complained that the Board’s decision was illegal because it misapplied the policy guidelines in relation to the term “undue concentration” by treating it as a numbers game without regard to the context of the entertainment nature of the area.
23. Under the fourth ground, it is complained that the Board’s decision was unreasonable in relation to its determination of the suitability of the applicant by its reliance on the police memorandum. Under the fifth ground, it is complained that the Board’s decision was illegal in relation to the suitability of the applicant in that it failed to take into account relevant considerations being information concerning the applicant’s field experience, licensing familiarity and understanding of licensee responsibilities.
24. Under the sixth ground, it is complained that the Board’s decision was illegal in that it failed to conduct a hearing de novo and exercise its own independent discretion.
The Board’s decision
25. The basis of the applicant’s appeal to the Board by his stated grounds and arguments were akin to a judicial review, submitting that the Public Officer was wrong or unreasonable in the matters under challenge. The Board in addressing the issue of the suitability of the location of the premises considered the applicant’s submissions that the Public Officer failed to take into account the particular features of the locality, the existence of other entertainment establishments in the vicinity, and the location of the premises in an entertainment area.
26. Mr Dykes submitted before the Board that the Public Officer should have taken into account the nature of the neighbourhood of the proposed location and not just focus on the number of other mahjong parlours in the vicinity. He relied on a Northern Ireland case of F.A. Wellworth & Co Ltd v Philip Russell Ltd [1997] NI 175 for the authority that the relevant question to ask when determining adequacy of licensed premises was whether the existing facilities adequately served the demand of the relevant vicinity and that adequacy and demand issues were not fixed.
27. The Board rejected Mr Dykes’ submissions on the basis that the authority of Wellworth was not apposite. The Board explained that in that case the respondent obtained a provisional off-licence under Article 6(1)(b) of the Licensing (Northern Ireland) Order 1990 in respect of certain premises in Belfast. Article 8(2)(c)(i) of the Order provided that, without prejudice to its power to refuse to grant a licence on any other grounds, a court should not grant a licence for any premises unless it was satisfied that the number of licensed premises of the kind specified in the application which were in the vicinity of the premises was inadequate. The appellants, who owned existing off-licence premises situated near to the proposed premises, appealed against the decision to grant the licence on the ground, inter alia, that the provisions in Article 8(2)(c)(i) had not been satisfied as their premises were in the vicinity of the proposed premises and the number of the off-licence premises in that vicinity was adequate. On appeal to a single judge it was held that in order to determine whether the number of licenced premises in the vicinity was adequate, the court had to take into account whether they were adequate to meet the reasonable requirements, shopping patterns, expectations and trends of the purchasing public resorting to the relevant area, and to ensure a proper competitive supply to those coming into the area, having regard to the disfavour shown by the law to restraints in the normal development of trade. On the facts of the case, the existing facilities serving the off-licenced trade were found to be inadequate to supply the demand in the vicinity and the respondent were therefore entitled to the provisional grant of an off-licence in respect of its premises.
28. The Board concluded that the Wellworth case turned on the construction of the term “inadequacy” in Article 8(2)(c)(i) of the Licensing (Northern Ireland) Order 1990 which was not a term used in the Guidelines and therefore did not find the case of assistance in determining whether the Public Officer had erred in coming to the conclusion that the proposed location was unsuitable for the establishment of a mahjong parlour. I agree with the Board’s conclusion and would add that the case was distinguishable because it concerned the construction of a term in the context of its legislative setting.
29. The Board however noted, correctly in my view, that whether or not there was a demand for a mahjong parlour in the locality was already an issue addressed under factor (i) of the Guidelines. The Board did not consider the issue of demand to be relevant when considering the suitability of the proposed location under factor (iv) of the Guidelines. I agree with the Board.
30. The Board noted that it appeared the Public Officer did take into account the nature of the neighbourhood in determining the suitability of the proposed location because according to the commentary of factor (iv) a mahjong parlour could be considered unsuitable if it was located in a pure residential neighbourhood or was close to an educational or religious institution or to institution or facility catering for children or youths.
31. The Board rejected the applicant’s submission that the locality being an entertainment area was a weighty factor to be considered by the Public Officer in deciding whether the proposed location was suitable for a new mahjong parlour. The Board noted that in Hong Kong, the Government’s gambling policy is to restrict gambling opportunities to a limited number of authorised and regulated outlets. According to the Home Affairs Bureau (which is responsible for formulating gambling policy and monitoring its implementation), the rationale behind the policy is two-fold. First, while there is always a demand for gambling, the conduct of gambling activities should be authorised and regulated as unregulated gambling activities can lead to a number of social problems and the involvement of an undesirable or criminal element. Secondly, since it is impossible to reconcile the different views in the community on the extent to which authorised gambling outlets should be allowed to exist, a compromise approach is to allow only a limited number of authorised gambling outlets, the purpose of which is to satisfy public demand for gambling which would otherwise turn to illegal operators.
32. The Board pointed out there is a wide variety of entertainment activities, which may or may not involve gambling, and hence there were obviously different regulations and policies governing different types of entertainment activity. It noted that whether or not a locality can be described as an “entertainment area” did not indicate whether an additional entertainment activity should be permitted to be carried out within that neighbourhood. As the Board rightly pointed out each case must depend on its own facts and circumstances: see Leung Lap v The Public Officer Appointed by the Secretary for Home Affairs, AAB No. 9/2013, 28 January 2014 at paragraph 23. I should add that in the case of gambling, it has long been recognised as a serious social issue that requires special consideration, and to group it under the rubic of entertainment is to misapprehend the problem and misapply the policy.
33. The Board addressed the issue of the applicant’s suitability as a licensee by considering the three grounds of complaint advanced by the applicant. These three grounds were also advanced before me and I have to say at the outset that I agree with the Board’s reasoning in rejecting them.
34. The first concerned the alleged requirement for the applicant to have relevant experience. The applicant contended before the Board that the Public Officer had wrongly regarded the holding of previous experience in managing a mahjong parlour as a prerequisite to succeed in an application for a mahjong licence. The Board held that this was not the case. They found that when the Public Officer used the phrase “lack of experience required in managing a mahjong/tin kau parlour” he was saying that the applicant was not considered to have possessed the necessary experience in managing a mahjong parlour. They referred to a letter dated 17 January 2014 from the Public Officer to the applicant’s solicitors where he explained that in assessing whether an applicant was suitable, factors included but not limited to, the criminal record of the applicant, his knowledge and experience in managing a mahjong parlour, his understanding on the role and responsibility of a licensee and licence conditions, and the Police’s recommendation. As correctly noted by the Board, this explanation clearly showed that previous experience in managing a mahjong parlour was only one of the relevant factors to be considered, and not a prerequisite in determining the suitability of the applicant.
35. The Board then considered the second ground in relation to the alleged failure by the Public Officer to take into account relevant considerations. It was submitted on behalf of the applicant that despite the admitted lack of hands-on experience in managing mahjong parlours, he had demonstrated his suitability by his educational background, and training, skills and practical experience in management, property and human resources. It was explained that the applicant intended to employ experienced staff members in the mahjong parlour industry, positions for which had been advertised, applied for and candidates interviewed and/or identified, which could reasonably compensate for the applicant’s lack of specific and hands-on experience. It was further explained that professional advisers, consultants and staff members would be retained to advise and assist the applicant on licensing requirements and the relevant statutory and regulatory framework when necessary. It was submitted that in light of the applicant’s background and competence he would be expected to grasp the licence conditions and the role of a licensee once given reasonable advice and assistance from retained professionals and experienced business partners. That was a matter of assessment that was considered and rejected.
36. The Board noted that in a letter dated 12 May 2014 to the applicant’s solicitors which enclosed the Public Officer’s decision, the Chief Officer expressly referred to the applicant’s further submissions and stated that the “Public Officer has thoroughly considered the application and the documents submitted, as well as the representations made...”. In addition, in the respondent’s statement dated 8 July 2014 at paragraph 9(b), the Public Officer stated that the points in the applicant’s written submissions and representations had been thoroughly studied, and referred to the following evidence:
“The Appellant has explained his education background, working experience and business/management skills, but he does not have adequate knowledge and experience required in managing a MJ/TK parlour… The Appellant was also not familiar with the licence conditions, the legislation and the role and responsibilities of a MJ/TK licensee and would rely heavily on others to advise and assist him. He stated that he would recruit ‘deputy licensee’ to assist him in running the MJ/TK parlour…”
37. The Board finally dealt with the third ground in relation to the Public Officer’s alleged over-reliance on the police interview. It was noted that as a result of the police interview of the applicant, the Commissioner of Police by way of a memorandum dated 8 October 2013 objected to the applicant’s application for a mahjong licence. The applicant contended that the Public Officer had placed excessive reliance on the contents of the police interview in rejecting his application. The Board noted that there was no dispute that the police’s recommendation is one of many factors taken into account in determining whether an applicant is a suitable person for managing a mahjong parlour. The Board concluded that they did not see any sufficient basis to think that the Public Officer had placed “too much” reliance on the contents of the police interview and it did not follow that he had placed over-reliance on the police interview just because his conclusion coincided with the police’s recommendation.
38. There is no question that given the nature of the licence (a gambling licence) under consideration, it is proper, if not essential, that the police make inquiry and provide information in respect of the proposed licence and the licence holder. There can be no demur from that proposition. It is difficult to understand the complaint from the applicant, for this is information that the decision maker is entitled to take into account when making his decision, and it is a matter for him what weight, if any, he puts on it. Other than showing it was wrong or unreasonable for the Public Officer to rely on this information, to complain that he placed too much reliance on it is fatuous.
39. The Board rejected the applicant’s criticisms and complaints of the Public Officer’s decision and in doing so confirmed and upheld his decision to refuse the applicant a mahjong licence.
Addressing the grounds for review
40. I should comment on the first five grounds for review which are more like general grounds of appeal. This is evident from the fact that the arguments before me were basically the same as presented to the Board, except they related to both the Public Officer and the Board. Whilst the grounds give the appearance of seeking to address certain matters in relation to the decision on the basis of illegality or unreasonableness, they descend into argument on the merits of those matters in order to put an alternative view. It is not a proper function in judicial review proceedings to consider the merits of the matter under challenge for that is the function of the relevant decision maker. Judicial review is a supervisory jurisdiction which reviews administrative action by public bodies, including inferior courts and tribunals, and differs from an appellate process in that it is not generally concerned with whether the decision in question was right or wrong, but with the quality of the decision-making process by ensuring that it was lawfully reached in accordance with proper procedures and was not unreasonable in those circumstances: see Chief Constable of North Wales Police v Evans [1982] 1 WLR 1155 at 1173-1174. It is under the various classifications of judicial review that in certain limited instances factual aspects of the decision may be reviewed, such as, where there has been a sufficient mistake of fact giving rise to unfairness or a failure to take account of relevant considerations or the taking into account of an irrelevant consideration. Care needs to be taken to ensure that the grounds properly address the public law function under review and not steer into a review of the merits of the decision.
41. I now turn to deal with the grounds for review which variously complain that the Board did not give any or any adequate reasons for the subject matter of the ground. I will first address separately the issue of the Board’s duty to give adequate reasons for its decision.
Duty to give reasons
42. Under section 25(1) of the Ordinance it is provided that the Board shall give reasons in writing for its decisions, and “those reasons shall include its findings on material questions of fact and a summary of the evidence or other material on which those findings were based”.
43. As to the need to set out findings and the evidence on which they are based, this will depend upon the particular circumstances of the case. If the Board has accepted the findings of the decision maker below, and that is apparent from the decision and/or the record, then in those circumstances that may suffice. The Board in deciding an appeal can “confirm” the appealed decision and that may obviate the need to set out in the Board’s written decision the findings and the evidence on which they are based. The Board in the present case rejected the applicant’s criticisms of the Public Officer’s decision and in so doing accepted his findings and conclusion. I will say more about this when I address the last ground for review for the applicant complains that the Board did not make its own findings and decision on the merits of the applicant’s application for a mahjong licence.
44. By reference to Oriental Daily Publisher Ltd v Commissioner for TELA (1997-1998) 1 HKCFAR 279, 291C-G (Oriental Daily), the applicant argues that the Board has a duty to give adequate reasons, which amongst other things, should show that it has addressed the substantial issues before it and show why it has come to its decision.
45. As explained in Oriental Daily, the benefits underlying the giving of reasons, include the imposition of a desirable intellectual discipline upon the tribunal; enabling the parties to decide whether there exist variable grounds of appeal; guidance in the future to the public or to sectors in the public interested in or affected by particular categories of the case; the enhancement of consistency in decision making; and the engendering of public confidence. As further explained, where there is a duty to give reasons, it must be discharged by giving adequate reasons and this in turn will depend on the context in which the decision maker is operating and the circumstances of the case in question. Usually it will turn on whether the reasons given are sufficient for the particular purpose they are required to serve.
46. Important that it is for the Board to give reasons for its decision, it does not have to address every issue that has been raised as long as it has set out sufficient reasons in addressing the substantial issues before it and showing why it has come to its decision. There may be matters that the Board did not address but its decision in relation to them may be apparent from the record, in that it is self evident from the context or the exchanges that have taken place in addressing the decision: see HKSAR v Okafor [2012] 1 HKLRD 1041.
47. The Board is required to give written reasons for its decision. It is fair to say that in the present case the Board gave detailed reasons in explaining its rejection of the applicant’s grounds of appeal and it is apparent from the record that in doing so it was confirming the decision of the Public Officer refusing the applicant’s application for a mahjong licence.
Ground 1: “Locality” and “Close proximity”
48. The applicant’s complaint under this ground is that the Public Officer constantly varied the definition of “locality” and “close proximity” which he used interchangeably by changing the radius of the area that he used in assessing whether there was an undue concentration of mahjong parlours in the locality.
49. Mr Dykes, who appears with Ms Isabel Tam for the applicant, points out that the Guidelines provide that the establishment of the proposed mahjong parlour should not result in an undue concentration of mahjong parlours in the locality and on this basis the Public Officer decided that the premises were unsuitable because there were five mahjong parlours in close proximity.
50. He notes that generally a radius of 100 metres is the measure for ascertaining proximity in cases like this. He argues that the Public Officer should have fixed a measure for locality by using a 100 metres radius from the premises. He refers to Ng Hon Keung Tommy v The Public Officer appointed by the Secretary for Home Affairs and Anor, HCAL 157/2013, 22 May 2015, unreported, where the court discussed the general practice of using a radius of 100 metres which it described as a working yardstick. This case does not assist Mr Dykes as the decision makes it clear that a radius of 100 metres is a yardstick only. He also refers to Chan Tak Choi v Commissioner for Television and Entertainment Licensing Authority, AAB 65/2003, 13 April 2004, where the Board commented on the lack of principle or guidance on how the Commissioner of Police decided there were too many mahjong parlours in a district and urged that he employ certain fixed considerations for this purpose. The current Guidelines address the issue of undue concentration but do not fix a distance for a radius from the premises in question. In fact, the Guidelines make no mention of any distance or area that should be used to represent the locality under consideration. I will say more about this but it seems to me there is good reason for not fixing a distance as it will depend on the particular circumstances of the case as to what is appropriate.
51. Mr Dykes supports his argument by giving three examples where the Public Officer has varied the definition of locality. First, the map relied on by the Public Officer to indicate the mahjong parlours in the locality, purports to circle 100 metres radius as the relevant locality. Secondly, the respondent’s statement revealed that the Public Officer counted mahjong parlours of up to 147 metres away as in the locality and at close proximity. Thirdly, also in the respondent’s statement the Public Officer considered that an educational institution 144 metres away was not appropriate to be taken into account because it was too far away.
52. He complains that no explanation for the apparent inconsistency was given by the Public Officer or the Board. First, I do not see any inconsistency, and secondly, it is abundantly clear that the Public Officer set out the relevant information and material on which he based his decision and this would have been apparent to the Board as well. The fact that he distinguishes between a mahjong parlour and an educational institution merely highlights that different consideration may apply to different subjects when addressing the Guidelines. As to the former, the Public Officer is addressing whether there is an undue concentration of mahjong parlours in the locality. As to the latter, the Public Officer is addressing whether the location of the proposed mahjong parlour is too close to an educational institution.
53. There was only one mahjong parlour 147 metres away from the premises. But the importance of what was set out on the map was the spatial display it provided of the locality by street and block reference with the locations of the mahjong parlours and other relevant institutions marked on it. The map marked by way of a circle a 100 metres radius from the premises to give an appreciation of the distances involved and an overview of the locality.
54. Mr Dykes also complains that the explanation for taking into account the furthest mahjong parlour as illogical. It was explained that it was very close to another mahjong parlour, some 81 metres away, which itself was some 66 metres away from the premises. He queries how 81 metres could be described as very close in the context of a radius of 100 metres. I have no difficulty with the description, given that the Public Officer identified a cluster of mahjong parlours in an area to determine whether there was an undue concentration of them in the locality. The distance of 81 metres may be considered very close when viewed in the overall proximity of all the other mahjong parlours in the locality. But this is a matter that the Board was addressed on and considered, and I fail to see how this falls within the ground for review.
55. Mr Dykes complains that the Board’s decision in confirming the Public Officer’s decision was inconsistent about the radius around the premises by which the criterion of “undue concentration” was measured. He argues that it is an accepted principle that a radius of 100 metres from the premises is the measure when addressing whether there are too many mahjong parlours in the locality and that the Board looked beyond the radius of a 100 metres when addressing this issue. He refers to the mahjong parlour that was located 147 metres away from the premises to make his point. He also complains that the Board failed to provide reasons for acting on the apparent inconsistency of approach when addressing this issue.
56. He argues that the treatment of the applicant was inconsistent with the application with the 100 metres norm and no explanation had been given for the departure. He submits that the Board’s decision is irrational in accepting such inconsistency and failing to provide justification on the inconsistency on such a fundamental issue. As I will explain, I see no inconsistency in the determination as to whether the establishment of the proposed mahjong parlour would create an undue concentration of mahjong parlours in the locality.
57. As provided by the Guidelines, one of the factors to be taken into account is suitability of the proposed location of the premises and in this regard the decision maker is to bear in mind that the establishment of the proposed mahjong parlour should not result in an “undue concentration” of mahjong parlours “in the locality”.
58. Mr Dykes acknowledges that the practice of describing a 100 metres radius around premises is not statutorily authorised and is an administrative practice that is used as a yardstick: see Leung Lap v Commissioner for Television and Entertainment Licensing, AAB 23/2010, 31 March 2011 at paragraphs 5 and 6. See also Ng Hon Keung v Public Officer Appointed by the Secretary for Home Affairs, HCAL 157/2013, 22 May 2015, unreported.
59. He argues that no special circumstances were mentioned by the Public Officer or the Board and that in the present case at times a radius of 100 metres was used and at other times a radius greater than that was used. It is complained that the inconsistency and failure to explain why a radius greater than 100 metres was sometimes used, undermined the rationality of the reasoning of the Board. It is further complained that this shifting and expanded perimeter was not fair.
60. In my view, there is no hard and fast rule, and nor should there be as to what area should apply when determining whether something is in “close proximity”. There is no objective standard for the term under the Guidelines. There are an infinite variety of factors that may legitimately arise in determining whether or not something is in close proximity, such as the nature and situation of the locality, the existence of any barriers, the nature and location of the premises, for instance, whether it is located at street level or in a high-rise building. It is not confined by fixing the perimeter of the locality with a 100 metres radius from the premises in determining whether there is an undue concentration of similar activities for which a licence is sought. A 100 metres radius is a useful yardstick but not one that is set in stone.
61. I see no inconsistency as complained by the applicant which offends the general principle of administrative consistency that like cases should be treated alike.
62. Mr Dykes further complains that the applicant all along used the 100 metres measure as the relevant radius, and prepared his submissions and materials on this basis. He says he was given no opportunity to respond to the expanded radius by the Public Officer and to modify his own materials or argument accordingly. Even if this was the case, which I doubt because the opportunity was given to the applicant to respond to the Public Officer’s preliminary view to refuse the application, by the time the matter went on appeal the applicant was fully aware of the basis of the Public Officer’s decision and had the opportunity to address it before the Board. In any event, the 100 metres radius is a yardstick and the applicant’s own map marked the location of the other five mahjong parlours and the 100 metres radius was depicted to show the distances involved.
63. It is also complained that no adequate reasons or any reasons at all were given to explain why there was an accepted inconsistency on such a fundamental matter. My first observation is that when the matter went on appeal before the Board, the applicant was aware that in assessing whether there were too many mahjong parlours within the locality a radius greater than 100 metres was used. Instead of addressing the issue before the Board, the applicant chose to stick to a radius of 100 metres and argue that anything beyond that should not be considered. It seems to me that the applicant was on notice that in the particular circumstances of this case it was necessary to look at a radius greater than 100 metres in order to properly ascertain whether there were too many mahjong parlours in the locality.
64. Mr Jenkin Suen, for the interested party, in response makes the point that there is no definition of “close proximity” in the Guidelines. Nor does the 100 metres radius measure feature in the Guidelines or form any part of the policy. Whilst the 100 metres yardstick has been used and adopted as the normal or general practice in assessing a like issue as was before the Board, it is after all only a yardstick which is obviously subject to many factors. There may be circumstances where something within a 100 metres radius is not in close proximity and then again there may be circumstances where the 100 metres radius is too small a radius to assess appropriately whether something is in close proximity. It will depend upon the particular facts and circumstances of the matter under consideration as to whether something is in close proximity.
65. The fact that a precise radius of 100 metres was not used is neither here nor there. What matters is that a reasonable radius was used to make a proper assessment as to whether or not there would be undue concentration of like activities in the locality and the applicant was aware of it and given a reasonable opportunity to address it, if necessary. There is no definition by way of some arithmetic measure to the term of close proximity in the Guidelines because it will vary from case to case. As long as it is a reasonable measure and one that is generally understood in order to appropriately evaluate whether there are other like premises in close proximity which may result in an undue concentration of them in the locality. In the present case, the Public Officer highlighted like premises within locality on his map and the applicant did the same on his mapand that was not unreasonable in the circumstances, and in any event, the applicant was aware of this at the time of the appeal which he chose not to address.
66. Mr Suen argues that there is no basis for suggesting that the decision maker must apply radius test and even so adopt the figure of 100 metres. He further argues that the applicant’s argument is fundamentally flawed because it identifies and uses fixed considerations in determining whether something is in close proximity and there is no legal basis for suggesting that the decision maker must adopt a 100 metres radius and if he does not then he has acted either inconsistently or illegally. I agree with this submission.
67. It is also pointed out by Mr Suen that the applicant’s approach is inconsistent with the construction of the term “in close proximity” by its ordinary and natural meaning. As explained by MacDermott LJ in Wine Inns Ltd v Lavery Ltd [1985] NI 427 at 429, in the context of the terms “vicinity” and “adequate”:
“While in every case one has to seek to apply the statutory terms which Parliament chose to adopt, these cases have established a number of propositions which should be borne in mind when seeking to understand the meaning of the words “vicinity” and “adequate” in each case, bearing in mind that there is no arithmetic formula of geographic scale which will resolve all cases. Each case depends upon its own particular circumstances and so the licensing jurisdiction is not only at times difficult, but it leaves room for differences of opinion and judgment ...”
Ground 2: Failure to consider material matters on location
68. The basis of this ground for review is that the Board failed to take into consideration and state its findings on three material questions of fact: (1) information relevant to the suitability of location as contained in the map submitted by the applicant, (2) the applicant’s arguments regarding distribution of mahjong parlours and (3) the applicant’s arguments regarding degree of increase in relative floor space.
69. I will deal with each of these matters but as I will explain later I am not of the view that the Board failed to either consider or address these matters. It is also complained that the Board failed to state its findings on these matters contrary to its statutory duty and that this failure to take into account relevant considerations rendered the decision illegal. As I have already said the Board by its decision has rejected the criticisms levelled against the Public Officer’s decision and has confirmed his decision and in doing so adopted his findings and conclusion.
70. Mr Dykes points out that the material before the Board included two maps. One provided by the Public Officer and the other provided by the applicant himself. He also points out that the map of the Public Officer was the only one that was referred to in the respective decisions of the Public Officer and the Board. He complains that the applicant’s map was neither considered nor addressed, notwithstanding there were major differences with the Public Officer’s map. He notes that the applicant’s map showed the actual walking distance from the premises to the other mahjong parlours which was greater than the distance calculated from point to point. The walking distance was not shown on the Public Officer’s map. He also notes that the applicant’s map shows only two other mahjong parlours within a 100 metres radius from the premises, whereas the Public Officer’s map shows double that figure. He complains that the Board neither noted nor discussed such a fundamental and large discrepancy. This was a matter that was addressed before the Board and by its rejection of the complaints made by the applicant it had accepted the findings and conclusion of the Public Officer.
71. To put these fundamental and large discrepancies in context, both maps showed the location of the five mahjong parlours on the same street map with a circle marked on it to depict a radius of 100 metres from the premises, and the applicant’s map had two mahjong parlours just over on the other side of the circle and a calculation of the walking distance from the premises to all five mahjong parlours.
72. The applicant’s submissions tend to highlight that to construe close proximity by some strict arithmetic formula is to put an unnecessary and unrealistic constraint on the concept of close proximity, which is clearly understood by its ordinary meaning and words. Obviously there will be factors that one will take into account in relation to the particular matter under consideration. By having a map, the decision maker is able to evaluate relative distances and proximity whether by a direct route or walking route in order to have an overall appreciation of the locality when determining whether there will be an undue concentration of such premises.
73. Mr Suen takes issue with the applicant’s complaint that there was a fundamental and huge discrepancy between the two maps which the Board failed to discuss and to give adequate reasons for preferring the Public Officer’s map over the applicant’s map. He makes the point that whilst there may be minor differences, it is the overall appreciation of the area and the location of other mahjong parlours that matters and should be taken into account. He submits that it is clear there were no material differences between the two maps for the purpose for which they served. I agree. In any event, the Board had both maps before it and no doubt considered any differences and what they displayed or depicted.
74. The applicant also complains that the Public Officer and the Board did not take into account the distribution of the mahjong parlours. He specifically complains that the Board did not address the applicant’s contention that the degree of increase and the number of mahjong parlours relative to floor area was relevant to the matter and that in the present case the increase would not be very significant. In this regard, the applicant points out that the premises would only cause a slight increase in ratio of mahjong parlour floor area to other entertainment establishments.
75. As rightly pointed out by Mr Suen, this calculation is derived by adding the total area of all night clubs and entertainment establishments which was 43 in total and as an exercise was quite meaningless. The total square feet of 294,000 was compared with the square footage of the proposed mahjong parlour of 2,600, resulting in a 2.4% increase in the number of establishments and a 0.8% increase in the total area of entertainment establishments. The Board addressed this submission and rightly rejected this general approach given the special nature of gambling establishments.
Ground 3: Misapplication of policy guidelines regarding “undue concentration” and “suitability”
76. Mr Dykes argues that the government’s policy on gambling is to take a balanced view on “a degree of public reaction to an application and the general environment of the vicinity of the proposed premises”, and to “balance the needs of the gambling public against the views of those who opposed gambling”: see Leung Kam Yung Ivy v Commissioner for Television and Entertainment Licensing and Anor, HCAL 1986/2000, 30 March 2001, unreported.
77. He contends that demand for mahjong parlours in the area should be considered under the policy, and this is particularly relevant when determining suitability of the proposed location. He argues that the issue of “undue concentration” in the Guidelines did not only depend on how many other mahjong parlours were in the area for it was also relevant that the local character of the locality was an entertainment area with demand for mahjong parlours. In that regard, particular features of the locality should have been taken into account especially where the precinct may be designated an entertainment area.
78. Before the Board, the applicant relied on Wellworth to argue the relevance of demand to the question of suitability. It was argued that in Wellworth the court took into account demand in answering the question of adequacy, stating that the trend of the authorities indicated that in determining adequacy the court must ask the question whether the existing facilities adequately serve the demand in the relevant locality. This argument was rejected by the Board because the term used in the Guidelines is “suitable” rather than “adequate”.
79. However, it is now argued that “adequacy” as considered in Wellworth is comparable with “suitability” in the context of the Guidelines. I do not agree. The word “suitability” needs to be considered in the context of the specific guideline in which it is mentioned and in the overall context of the Guidelines as a whole. In this instance it is a factor (iv) which relates to suitability of the proposed location.
80. This reliance on the argument of demand for mahjong parlours in factor (iv) ignores the fact that cogent need for a gambling outlet is addressed in factor (i) of the Guidelines.
81. This matter was argued before the Board which it comprehensively addressed and I agree with the Board’s reasoning on it.
Ground 4: Over-reliance on police memorandum and/or police interview
82. The applicant argues that the Board unreasonably accepted the Public Officer’s reliance on the single source of the police.
83. The police memorandum remarked about the applicant’s inadequate experience and his lack of knowledge in the field. It was open to the Public Officer to accept the report of the police on this matter which was in turn accepted by the Board.
84. Mr Dykes argues that there was an over-reliance on the police information which was unreasonable. It is complained that the police’s adverse view of the applicant was not supportable as it almost completely relied on the short interview conducted by a police officer with the applicant. He made his statement to the police and signed it in the presence of his solicitors. He was interviewed and a statement was taken from him for the purpose of considering his application for a mahjong licence which he must have understood at the time. In it he acknowledged his lack of experience in managing mahjong parlours.
85. There is no substance to this complaint and it was considered and addressed by the Board in its decision. I agree with the Board’s reasoning in rejecting it.
Ground 5: Failure to consider information concerning the applicant
86. The applicant complains that the Board failed to consider favourable information about him.
87. Submissions were made on behalf of the applicant to the Board to show his employment experience in a relevant field, his demonstrated familiarity with licensee responsibilities in his recruitment of staff which had met the vetting required under the relevant legislation, and his intention to retain professional advisers and/or consultants which showed that he took the responsibilities as a licensee seriously. The applicant acknowledges that the Board did not dismiss these matters as irrelevant, but he nevertheless argues that the Board did not make any independent analysis of them, but simply stated that it assumed that the Public Officer must have taken these matters into account because he said so.
88. Mr Suen points out that the Public Officer took into consideration the relevant material which the Board noted he had done and they agreed with his assessment of the material and his conclusion. He argues that it was open to the Board to do so and they adopted the Public Officer’s reasoning and conclusion on the matter. I agree. The Board was fully entitled to accept and adopt the reasoning and conclusion of the Public Officer in “confirming” his decision.
89. The applicant argued before the Board that the Public Officer had failed to take into account the favourable information about him. He presented this information to the Board which it considered and rejected. There is no substance to this complaint.
Ground 6: Failure to conduct a hearing de novo
90. Mr Dykes argues that the Board failed to exercise its full jurisdiction by wrongly treating its power of conducting the appeal by a way of hearing de novo as a power to merely review. As a consequence, the Board limited itself in the conduct of the appeal.
91. He refers to Ko Siu Luen v Appeal Tribunal (Building) [2012] 1 HKLRD 149, which involved a tribunal under the Buildings Ordinance, Cap 123, with the same statutory power as conferred on the Board. In that case, Au J explained that the Tribunal in conducting a hearing de novo should exercise the discretion afresh and independently on the merits, in light of all the evidence (including new evidence) and submissions made before it in the appeal. He went on to stress that the Tribunal is not hearing the appeal as if it were a judicial review application, and concluded the Tribunal was wrong in law “to import the principle of Wednesbury unreasonableness (the public law principle) to restrain and limit its own exercise of the discretion of the appeal.”
92. Mr Dykes went through the decision of the Board and highlighted that the language used was that of review, not appeal, and by doing so it had failed to exercise its full jurisdiction, and therefore instead exercised only a restrictive one. See R v Visitors to the Inns of Court, ex parte Calder [1994] QB 1 at 62F‑H.
93. Mr Dykes argues that by these statements the Board did not apply the standard as set out in subsection 21(1)(j) and therefore put constraints on its own discretion. By way of an example, he referred to paragraph 28, where the Board stated that it did not accept that the Public Officer was wrong or unreasonable in coming to the conclusion that the proposed location was unsuitable for the establishment of a mahjong parlour, and later at paragraph 40 where it stated that the Public Officer was neither wrong nor unreasonable in coming to the conclusion that the applicant was not suitable to hold a mahjong licence.
94. Mr Dykes submits that the failure of the Board to conduct a hearing de novo on the issues of suitability of the applicant and the suitability of the location, which were substantial issues warranting serious consideration, meant that it failed to make its own findings and give adequate reasons for them as required under the Ordinance.
95. The Board in its decision made the following comments at paragraphs 11 and 12:
“11. The appeal before the Board is a hearing de novo. The Board is entitled to determine the merits of the decision appealed against and exercise its discretion afresh; it can even substitute its own view on the merits. See Chan Wing Sang v Commissioner of Police (AAB No. 220/2013, 17 April 2014) §23; Happy Pacific Limited v Commissioner of Police (unreported, HCAL 115/1999, 11 November 1999) §36 (Stock J).
12. In the context of an appeal against the exercise of a discretion, the Board is entitled to exercise its discretion afresh if, upon consideration of the case under appeal, it is satisfied that the decision appealed against is either wrong or excessive. A decision that involves the exercise of a discretion may be found to be wrong or excessive if the discretion is found to have been exercised unreasonably or disproportionately. See Chan Wing Sang v Commissioner of Police (AAB No. 220/2013, 17 April 2014) §24.”
96. Mr Dykes argues that paragraph 11 correctly states the powers and functions of the Board but paragraph 12 does not. He argues that the Board misdirected itself in that it limited its functions as an appeal body by equating the appeal with a species of review. He submits that the Board rehears an administrative determination uninhibited by the primary decision maker and should therefore make its own judgment on the matter. His complaint is that the Board once it rejected the criticisms against the Public Officer’s decision was not relieved from making its own findings and judgment and should have done so.
97. The passages contained in paragraphs 11 and 12 have as their origin from the following paragraphs in Chan Wing Sang v Commissioner of Police, AAB No 220/2013, 17 April 2014:
“23. The appeal before the Board is a hearing de novo. The Board is entitled to determine the merits of the decision appealed against and exercise its discretion afresh. It is not limited to reviewing the regularity of the decision making process, nor is its power to determine the appeal on its merits limited to cases where the decision appealed against is found to be irrational or Wednesbury unreasonable.
24. In the context of an appeal against the exercise of a discretion such as the present case, while recognizing that the original discretion is vested by the legislation on the Respondent, on appeal the Board is entitled to exercise its discretion afresh if, upon consideration of the ease under appeal, it is satisfied that the decision appealed against is either wrong or excessive: see, Jen Co Men v Commissioner of Police AAB No. 28 of 2007. A decision that involves the exercise of a discretion may be found to be wrong or excessive if the discretion is found to have been exercised unreasonably or disproportionately: see, So Yam Ming Commissioner for Labour AAB No. 33 of 2005.”
98. I have set out the passages in full because in paragraph 23 above, which was cited by the Board, it is clear that the Board was mindful that the appeal function is not limited to reviewing the regularity of the decision and the decision-making process. Whilst the Board in its decision addressed the issue of the Public Officer’s determination on the suitability of the applicant and the premises as to whether it was wrong or unreasonable that was because the applicant’s grounds were framed more in the nature of a review. However, it is quite apparent from the Board’s comprehensive decision that in addressing the applicant’s complaints as contained in his grounds it was critically analysing and evaluating the Public Officer’s findings and reasoning and at the conclusion of which found no fault on his part and accepted his decision. In other words, the Board adopted the findings and conclusion of the Public Officer and confirmed his decision.
99. The Board may “confirm, vary or reverse” the appealed decision or “substitute” it with such other decision it thinks fit. In the present case, the Board confirmed the decision. It had all the information and materials that were before the Public Officer and had the benefit of comprehensive legal submissions on the applicant’s behalf. The applicant presented his case by addressing the Board on a series of grounds in challenging the decision by the Public Officer in rejecting his application. The applicant cannot be heard to complain because the Board addressed the appeal on the basis of the case presented by him and on the grounds he submitted.
100. I note, however, that the applicant by his written submissions also invited the Board to make a determination as to the suitability of the location of the premises and of him as a licensee. The Board was therefore mindful of its power to consider the application afresh. It is clear from the Board’s decision that by its analysis it had adopted the findings and conclusion of the Public Officer and by virtue of subsection 21(1)(j) “confirmed” the decision of the Public Officer.
101. I should say that care needs to be taken not to limit the statutory power of appeal to the Board by reference to some general term or to a range of functions. As I have already explained, the powers of the Board are very wide as provided by the statute. It can determine its own procedure; receive and consider any material in whatever form, and whether or not it would be admissible in evidence in civil or criminal proceedings, and determine the manner in which it shall be received; require the attendance of any person to give evidence or produce documents; administer oaths or affirmations; examine on oath or affirmation any person and require such person to answer all questions put by or with the consent of it; by consent of the parties dispense with an oral hearing on the basis of written submissions only; determine the appeal summarily in favour of the appellant without a hearing if it appears that the respondent has reversed the decision; confirm, vary or reverse the decision or substitute it for such other decision or make such other order as it may think fit and in so doing having regard to any relevant statement of policy which the appellant would have been aware and send the case back to the respondent for consideration of such matter as ordered; and do all things ancillary to these powers or reasonably necessary for the discharge of the functions under the Ordinance.
102. It is therefore more appropriate to look at the language of the statute to understand the terms and scope of the powers of the Board rather than rely on descriptive labels or functional features.
103. In the course of the hearing, Mr Dykes developed his argument to suggest that from the language of the Guidelines, once the decision maker was satisfied of them he had no discretion and he was therefore duty bound to issue a licence. I should point out that this argument was first advanced at the hearing and was not a ground for review. As I understand his argument, he contends that if only one course can be lawfully adopted then the decision is not the exercise of discretion but the performance of a duty. I think it is important to bear in mind that discretionary guidelines are there to promote consistency in decision-making and diminish the risks of arbitrary and capricious decisions and are mainly directory and not exhaustive which may be departed from when it is reasonable to do so.
104. The Public Officer under subsection 22(1)(b) of the Gambling Ordinance “may” license premises for the playing of mahjong. The Public Officer therefore has discretion whether or not to grant a licence and in this exercise he is assisted by the Guidelines. It is stated in the Guidelines that each application will be considered on its own merits and that the Public Officer will consider the six major factors listed therein. They are (i) cogent need for a lawful gambling outlet; (ii) suitability of the applicant; (iii) suitability of the proposed premises; (iv) suitability of the proposed location; (v) local reaction; and (vi) sympathetic consideration for a “relocation” case. Under each of these factors a brief statement is made variously about the purpose or significance of the factor and/or how it would be assessed.
105. I therefore do not see that it was wrong for the Board to say that the decision of the Public Officer, which it could confirm, vary, reverse or substitute on appeal, was the exercise of a discretion and this was variously mentioned to be the case by Mr Dykes in his written submissions and oral arguments.
Conclusion
106. For the foregoing reasons this judicial review of the Board’s decision fails. In the circumstances of this case I see no reason why costs should not follow the event and accordingly I make an order nisi that the applicant pays the interested party’s costs, to be taxed if not agreed.
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(Kevin Zervos)
Judge of the Court of First Instance
High Court |
Mr Philip Dykes SC and Ms Isabel Tam, instructed by Edmund W.H.
Chow & Co, for the applicant
Mr Jenkin Suen, instructed by the Department of Justice, for the interested
party
[1] Hearing Bundle (HB)/A/1-43
[2] HB/B/67-69
[3] Included were a written submission entitled “Whether There Is Undue Concentration of Mahjong Parlours (“MJP”)” and a case summary of Ng Ho Chiu, Daymond v Commissioner for TELA, AAB 49/2011, HB/B/61-66, 170-172 and 173-177
[4] HB/B/72-73
[5] HB/B/207-208
[6] HB/B/205-206
[7] HB/B/210-212
[8] HB/B/215-216 and 219-220
[9] HB/B/221-232 and 233-278
[10] HB/B/281
[11] HB/B/279-280
[12] HB/B/285
[13] HB/B/306-322
[14] HB/B/344-361
[15] HB/B/363-372 and 431-438
[16] HB/C/3-19
[17] Section 11
[18] Section 5
[19] Section 6
[20] Section 17
[21] Section 18
[22] Section 23. See Happy Pacific Limited v Commissioner of Police, HCAL 115/1999, 11 November 1999, unreported, at pp 14 to 16 per Stock J (as he then was).
[23] HB/B/59
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