KO CHUN KWEI v. THE COMMISSIONER FOR TELEVISION AND ENTERTAINMENT LICENSING

1991 M.P. No. 1149

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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D E C I S I O N

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1. This is an application for judicial review made pursuant to leave granted by Wong, J. The dates for today's hearing have been fixed for quite some time. Papers were served by the applicant on the respondent over nine months ago, marked, I am told, for the urgent attention of the Commissioner.

2. This Court has been directed to O.53 r.6(4). It is complained that the two affidavits filed on behalf of the respondent left counsel for the applicant just 2¹/₂ working days for meeting the various matters raised in those affidavits. An application for an adjournment is thus sought from this Court, which is strenuously resisted by Miss Hartstein for the respondent.

3. The core complaint against the applicant is set out at pp.52 and 59 of the bundle placed before me. It is reasonably clear that the applicant is alleged to have deliberately misled the Commissioner by false information with reference to the permitted site or area in the licence granted to him.

4. Judicial review ought to be dealt with expeditiously. It is to be given priority just as in the case of an injunction. I do not propose to dwell upon the obvious reasons for an early disposal of an application for judicial review. The applicant's licence for his Amusement Games Centre at Melbourne Plaza has been, on his alleged misconduct, revoked by the Commissioner. Any delay in proceedings of this nature is all the more undesirable. The Court's discretion in acceding to an application for adjournment must, therefore, be exercised with great caution.

5. Officers of the Commissioner were charged with and pleaded guilty to certain corruption offences in connection with, inter alia, the applicant's Amusement Games Centre at Melbourne Plaza. The allegation against the applicant for having deliberately furnished the Commissioner with false information as to the site or area may be viewed by a layman as carrying unsavoury implications, but I am to focus on his complaints in terms of administrative law.

6. This Court has not been fully assisted as to the of the stance of the applicant. After the grant of the licence to him, a plan was submitted and approved by the Commissioner in June 1990 for the use of same site or area at Melbourne Plaza as an Amusement Games Centre by the applicant. It would seem that the applicant will argue that the Commissioner's June 1990 approval has rendered the current use of exactly the same area and dimensions today an impliedly permitted or authorised user under the Ordinance. Thus, there was no misconduct. Further, the applicant will presumably invoke the Wednesbury unreasonableness doctrine against the Commissioner's decision to lift his licence, also on account of her approval of his plan submitted in June two years ago.

7. It is, I believe, acknowledged that no new allegations have been made against the applicant. But on the revelations in the two affidavits filed on behalf of the respondent, it would be open to the applicant to complain of matters wrongly taken into account by the Commissioner, which had been unknown to him until 2¹/₂ working days ago. These matters are not connected with any criminal allegations against the applicant personally but may arguably be regarded, on the applicant's contention, as matters irrelevant to his conduct or suitability as an Amusement Games Centre licensee. Hence, it is said by Mr Chan, counsel for the applicant, that the Commissioner had wrongly taken into consideration irrelevant matters in coming to her decision to revoke or take steps to revoke his licence.

8. These alleged irrelevant considerations are said to have come to light only 2½ working days before the hearing. Mr Chan, counsel for the applicant, submits that his client is entitled to be heard as to whether these are indeed considerations which the Commissioner ought not have taken into account. Equally, the applicant should be permitted to adduce evidence in support of this contention or by way of further explanations. A case has been made out by the applicant for time to meet the recent disclosures made by the Commissioner in these two affidavits. The applicant is entitled to stand before the court fully prepared, aided by whatever material information he chooses to place on affidavits in that direction.

9. The applicant is facing criminal charges. Mr Chan, counsel for the applicant, expresses concern as to his decision on what and if so, the extent of information to be included for the purpose of meeting the material disclosures in these two affidavits. All this calls for a finely-balanced approach, and the applicant's intended additional complaint merits a fullest possible argument.

10. In addition to the arguments which I would expect the applicant to mount on account of the submitted plan approved in June 1990, the applicant intimates through his counsel that he may possibly be seeking a stay pending the prosecution of his criminal charges, but no application has seen made before me for these proceedings to be so stayed and I wish to express no views on the intimation of counsel.

11. For all these reasons, the applicant should be given time to fully prepare his case for meeting the disclosures now made by the respondent. I grant the adjournment sought on behalf of the applicant. I also give leave for the respondent to file the two affidavits in question. I further order that these proceedings be adjourned to an early date to be fixed, estimated time two days. The applicant to file further affidavit or affidavits within ten days from today. Costs of these proceedings for to-day and those thrown away and for the applicant's application be, I order, reserved.