SEA DRAGON BILLIARD & SNOOKER ASSOCIATION v. URBAN COUNCIL

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REASONS FOR JUDGMENT

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Sir Derek Cons, V.P., delivered the judgment of the Court:

1. The Sea Dragon Billiard and Shooker Association has, since December 1986, operated a substantial business in Ngau Tau Kok Road, Kowloon by way of a billiard hall. In 1988 an amendment to the Public Health and Municipal Services Ordinance, Cap. 132, required a business of that kind to obtain a "billiard establishment" licence from the Urban Council. The amendment was to become effective in December 1989.

2. In May of that year the Association accordingly applied for a licence. It was refused by the Council, albeit not until 10th March the following year, the refusal being subsequently confirmed upon application for review by the Association. On 22nd January this year Kaplan, J. declined judicially to review that refusal; and on 28th March this Court dismissed an appeal from his decision. The Association sought leave to appeal to Her Majesty in Council.

3. Appeals to Her Majesty in Council are currently governed by the Order in Council given on 10th August 1909 as amended by a further Order dated 27th November 1957. Rule 2 provides:

"    Subject to the provisions of these Rules, an Appeal shall lie -

(a)    as of right, from any final judgment of the Court, where the matter in dispute on the Appeal amounts to or is of the value of $500,000 or upwards, or where the Appeal involves, directly or indirectly, some claim or question to or respecting property or some civil right amounting to or of the value of $500,000 or upwards; and

(b)    at the discretion of the Court, from any other judgment of the Court, whether final or interlocutory, if, in the opinion of the Court, the question involved in the Appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to His Majesty in Council for decision."

4. The grounds on which relief was sought in the court below were that:

"(i)    The Public Health Select Committee of the Urban Council

(a)    Failed to determine the said application according to natural justice.

(b)    Took into account irrelevant and/or extraneous material in reaching its determination.

(c)    Failed to exercise its discretion, pursuant to the licensing provisions of the Public Health and Municipal Services Ordinance by fettering the same with irrelevant or extraneous considerations.

(d)    Has failed to exercise any discretion in the determination of the said application.

(e)    Failed to act judicially and/or according to the law in its determination of the said application."

5. On appeal to this Court the request was, inter alia, for an "order that the appellant's application for a licence ... be considered by the licensing authority according to law".

6. A similar situation is to be found in the Privy Council proceedings of The Royal Hong Kong Jockey Club v. Peter James Miers 18th July 1983, as yet unreported, but an authority that could usefully be included in the Hong Kong Law Reports. There the stewards of the club declined to renew the licence of a well known jockey who had been riding here for over ten years. That decision deprived him of an income well in excess of the $200,000 prescribed at that time by the Order in Council. He applied for relief in the court below on the ground that the decision had been made without his being given a fair hearing. The judge rejected that contention and this Court upheld the decision. The majority of this Court, being satisfied that in the particular circumstances the jockey had an effective right to a licence if he could make good his contentions, concluded that he had an appeal as of right to Her Majesty. Their Lordships however took a different view, agreeing with the dissenting judge that the only civil right involved in the appeal was the right to a hearing and a determination by the stewards which complied with natural justice. Their Lordships found it unnecessary to consider the value of that licence:

"... because they have reached the conclusion that the proposition that the value of the licence lost is the measure of the value of the right to a fair hearing cannot be said to be raised in these proceedings. The difficulty in the way of the appellant is the same as that which has defeated his submission that the appeal involves the right to a licence. The proceedings as constituted do not involve directly or indirectly the right to a licence."

7. Mr. Litton, for the Association, the present applicant, while conceding that the right directly involved in the proposed appeal is the right to a fair hearing, suggests that this Court is not bound by the earlier decision because the right of the kind which he contends to be indirectly involved was in that case not advanced to the Board, namely the Association's right to run, or to continue to run, its business.

8. We have to accept that this approach was not specifically mentioned in the Advice given, but we are satisfied that it must have been present in their Lordships' minds, not only because of the factual situation presented to them, but because the following passage appears in the judgment of the majority of this Court:

" The second reason relies on the second part of paragraph (a), that the appeal involves, directly or indirectly, a question respecting a civil right worth more than the specified amount. The civil right is said to be Mr. Miers' right to work at his chosen profession for at least this current racing season, a right which I accept to be worth more than $200,000."

We are not able to discern any distinction in principle between the two cases and are satisfied that the Association has no appeal as of right.

9. We turn then to its alternative application under rule 2(b). No attempt has been made to comply with the suggestion made by another division of this Court in First Pacific Bank Ltd. v. Robert H.P. Fung [1990] 1 HKLR 527 at 532 where my Lord Fuad, V.P. said:

"I think that the time has come, if my brothers agree with me [which they did], to state that good practice requires that wherever rule 2(b) is relied upon, the question should be set out in the application. This has obvious advantages."

10. We are told now that there are two questions for consideration. The first can be expressed, we think, as "did this Court err in failing to distinguish Calvin v. Carr [1980] AC 574 on the ground that the provisions there considered were contractual rather than statutory?" The second is more diffuse and appears to depend for its very existence upon first, the Association's being able to persuade the Board that, contrary to the judge's and our finding, the Select Committee of the Urban Council felt that, by reason of Rule 5 of the Places of Amusement (Urban Council) Bylaws, their conclusion was determined for them by the opinion of the Director of Fire Services as matter of law; and secondly, that in that circumstance the Council would not accept the observation of this Court that:

"In that case the refusal would, of course, not have been a genuine exercise of the Council's discretion and the court would inevitably intervene."

Then, it is said, important questions of law would necessarily fall for discussion.

11. We regret that we are unable to discern in the first suggestion any question of great general or public importance. The second, with respect, we think to be fanciful.

12. It was for these reasons that on the 19th of this month we refused the application for leave, reserving our reasons for reduction into writing.