COMMISSIONER FOR TELEVISION AND ENTERTAINMENT LICENSING v. AMUSEMENT GAME CENTRES APPEAL BOARD

CACV 185/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO.185 OF 2003

(ON APPEAL FROM HCAL 35 OF 2003)

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J U D G M E N T

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Hon Stone J :

Introduction

1. This is an appeal against an Order of Hartmann J dated 17 June 2003 wherein the learned judge dismissed an application under Order 32 rule 6 by a party interested in these proceedings, one Mr Hui Kin, to set aside an earlier ex parte Order, dated 6 May 2003, whereby the judge had granted the Commissioner for Television & Entertainment Licensing leave to apply for judicial review of a decision of the Amusement Game Centres Appeal Board, the Commissioner and the Board being named in the proceedings as Applicant and Respondent respectively.

2. Shorn of detail, the key issue in this procedural appeal involves a point of principle which in this jurisdiction at least appears not to have been the subject of direct appellate authority, namely, the date from which time is to run when an application is made for leave to seek judicial review of a decision for which reasons are subsequently given.

The factual background

3. Mr Hui Kin runs an Amusement Games Centre. To do so a licence is required, which is granted pursuant to the provisions of the Amusement Games Centres Ordinance, Cap.435. In April 2002 Mr Hui wished to move his existing establishment to new premises, and this required the grant of a new licence to operate at those premises. He made an application in this regard, which was considered by the Commissioner for Television and Entertainment Licensing, and in September 2002 refused.

4. Mr Hui was dissatisfied. He appealed to the Amusement Games Centres Appeal Board. That appeal was heard on 14 January 2003, and the Appeal Board unanimously allowed the appeal. The decision in his favour was given on the date of the appeal, accompanied by very brief reasons only, the Board indicating that it would give full reasons for its decision later.

5. Thereafter Mr Hui entered into business arrangements with an associate and formalized his tenancy agreement in respect of his new premises. These new premises were a financial burden, and Mr Hui wished to get them up and running as quickly as possible. So his solicitors entered into correspondence with the Commissioner urging the resolution of outstanding administrative matters, in particular the issue of a letter of further consideration, without delay.

6. This first letter was dated 29 January 2003, and evinced a reply from the Department of Justice to the effect that the Commissioner was considering a challenge to the Appeal Board's decision by way of judicial review and - and this is the origin of the argument which has dominated this appeal - further stated that "as written reasons for the decision are still pending, the authority cannot form a definite view in this regard yet".

7. The Appeal Board handed down full reasons for its decision on 25 February 2003.

8. On 20 March 2003 Mr Hui's solicitors again wrote to the Department of Justice. They pointed out that nearly one month had elapsed since delivery of the written reasons for decision and that, with a view to saving time and minimizing his loss, their client was carrying out the fitting and decoration of the proposed game center.

9. To this the Department of Justice responded by letter dated 2 April 2003 indicating that they were at the final stage of considering the question of judicial review and that, absent the issue of a letter of consideration by the authority, Mr Hui was strongly urged to "hold off" carrying out the fitting and decoration works and not to incur further expense in respect of the proposed game center.

10. The solicitors for Mr Hui replied on the same day stressing that there had been ample time to make a decision on whether to seek judicial review, and underscoring the fact that the unjustified delay in making such a decision was unfair to their client who was bearing a heavy financial burden. The letter noted that the fitting out of the proposed game center would soon be completed.

11. The following day, 3 April 2003, the Department of Justice replied, noting that the Appeal Board had given its oral verdict "with brief reasons only" on 14 January 2003, and that the detailed written reasons for the decision had not been made available until 26 February 2003, without sight of which the Department maintained that it was unable to determine whether there were any grounds for judicial review and hence could not maintain an application properly "should we decide to make one". Mr Hui's financial concerns were appreciated, the letter continued, but once again he was urged to hold off fitting and decorating the proposed game center until a decision was made "which we will let you know of shortly".

12. On 17 April 2003 the Commissioner filed an application for leave to apply for judicial review. It does not appear that there was any prior communication with Mr Hui before this application was made.

13. Having been thus filed, the application was considered on the papers by Hartmann J, who by Order dated 6 May 2003 granted leave to the Commissioner to apply to review the adverse decision of the Appeal Board.

14. The 'Form 86A', the statutory form for the Notice of Application for Leave to Apply for Judicial Review pursuant to Order 53, rule 3 RHC defined that to be reviewed as :

"The decision of the Amusement Games Centres Appeal Board ('the Appeal Board') in the Amusement Game Centres Appeal case no.66-04 of 2002, pronounced orally at the appeal hearing on 14th January 2003 and in Written Reasons dated 25th February 2003 ('the 2003, Decision')",

whilst the relief sought was an order of Certiorari to bring up and quash the decision of the Board as pronounced orally at the hearing on 14th February 2003 and in written reasons dated 25th February 2003.

The Notice of Application asserted, in the final paragraph thereof, that the application was made promptly, and in any event within three months after the date when the grounds for the application first arose, and that the requirements of Order 53 rule 4(1) were satisfied.

The proceedings below

15. Leave having thus been granted on the basis of the Form 86A, by Notice of Motion, pursuant to Order 32 rule 6 and dated 22 May 2003, Mr Hui Kin moved for the setting aside of the grant of leave to apply for judicial review, citing two grounds for such application : first, that the application for such leave was out of time or was not made promptly; and second, that there had been material non-disclosure on the part of the Applicant on the basis of the failure in the affidavit sworn in support of the application to apprise the judge of the commercial arrangements which had been made by Mr Hui Kin in terms of entry into the lease at the new site and of the fact that renovation works had already commenced.

16. The learned judge heard argument on the application on 17 June 2003, and by a judgment of the same date dismissed the application to set aside the grant of leave. He did, however, "confess to having some sympathy" with Mr Hui's predicament, recognizing that understandably Mr Hui was anxious to make good on his investment once the Appeal Board had ruled in his favour; in these circumstances the judge ordered that there should be an expedited hearing of the judicial review and a date was set for the hearing on 31 July 2003 before another judge.

17. In his careful judgment Hartmann J rejected the non-disclosure point, noting that the failure to disclose the commercial interests of Mr Hui should not result in the setting aside of the application for leave, and further expressly finding that the Commissioner's application for the grant of leave was filed within three months "from the date when the grounds for the application first arose".

18. It was in the latter context that the judge held that the "grounds" for judicial review may only become apparent when reasons for any particular decision are given, and thus he was satisfied, he said, in the circumstances wherein the Appeal Board had delivered its decision at the conclusion of the hearing before it, but thereafter had rendered its reasons some seven weeks later, that the Commissioner's application for leave had been made within three months from the date when the "grounds" first arose, and in the circumstances also had been made "promptly", both of which represent the statutory requirements as set out in Order 53, rule 4(1) for the making of applications for leave. In this connection the judge observed that there was nothing on the papers to demonstrate a lack of promptness, and that time was required to take and consider legal advice and to draft the application : "such matters are not brought to fruition within days" was his comment.

This appeal

19. The appeal against the learned judge's Order dated 17 June 2003 is mounted by Mr Dykes SC, counsel for Mr Hui Kin, against the decision below on both the non-disclosure and the time points. Regrettably the appeal went part-heard, with the unsatisfactory consequence that the cogent and helpful submissions of Mr Dykes and Mr Coleman, counsel for the Commissioner, spanned a period of almost four months.

20. I take the non-disclosure issue first. Mr Dykes argued that the omission of the exposure of Mr Hui to commercial liabilities, in particular regarding the lease of the new premises and the commencement and completion of the renovation works, represented matters which should have been disclosed, and that the omission of reference to these matters in the Form 86A or in the affidavit in support was material.

21. For his part Mr Coleman pointed out that the matters of non-disclosure now relied upon were those which were before the learned judge and which he had specifically considered, whilst at the same time reminding himself of the relevant principles. The judge had exercised his discretion on the issue, and had ruled as he did, said Mr Coleman, and accordingly the appellate court should be very slow to interfere in these circumstances.

22. On this aspect of the case I agree with Mr Coleman. I discern no ground to interfere with a discretion validly exercised in the court below, and consider that this ground of appeal must fail.

23. I turn now to the main platform for argument in this appeal, namely that the application for leave to apply for judicial review was out of time. The line of demarcation between the respective arguments was thus. On behalf of Mr Hui, Mr Dykes contended that the judge below had been incorrect to conclude that the application for leave had been made within time, and that in terms of an application for leave to apply for judicial review the point from which time was to run in this case was the date of the decision of the Appeal Board, which had been made on 14 January 2003, and not the date of handing down of the Appeal Board's reasons on 25 February 2003. On this basis, therefore, the application for leave to apply for judicial review, as filed on 17 April 2003, was not, as the learned judge had found, "well within three months of the handing down of those full reasons", but in fact was some three days out of time.

24. To the contrary, Mr Coleman for the Commissioner strongly argued that, absent the written reasons in this case, the Commissioner could not have been able to determine if there were any, and if so, what proper grounds there may be for launching an application for judicial review. In the circumstances, therefore, the statutory requirement to act "promptly and in any event within three months from the date when grounds for the application first arose" was to be evaluated as from 25 February 2003, the date of the detailed reasons handed down by the Appeal Board. In other words, said Mr Coleman, for the purposes of this judicial review the decision now sought to be reviewed could not be taken to be 'complete' until there were written reasons; indeed, he noted, the decision was defined in that way in the Form 86A, and to use and make sense of the wording of Order 65, rule 4(1), the date of 25 February 2003 represented "the date when grounds for the application first arose".

25. Somewhat curiously, given the range and profusion of applications for judicial review within this jurisdiction, there is no Hong Kong appellate authority which binds this court on the construction of Order 53, rule 4(1) regarding this particular issue.

26. A range of cases were cited by counsel on either side. In the context of this appeal, and the precise point currently under consideration, there is no need to refer to them all. Mr Dykes placed heavy reliance at the outset upon a decision of the English Court of Appeal in R v. Department of Transport, ex parte Presvac Engineering Limited, reported in The Times, 10 July 1991, the judgments of the court being available in Lexis transcript form, wherein it was argued (as did Mr Coleman before this court) that the three month period prescribed within the like English sub-rule did not begin to run until the applicant in that case was in a position to formulate his application for judicial review with reasonable confidence based on admissible and sensible evidence, and that this did not become available until outside the three month period. This argument was rejected, Purchas LJ observing that he was unable to import into the terms of Order 53, rule 4 qualifying words to the effect that an application for judicial review should be made promptly and in any event within three months "from the date when the grounds for the application first became known to the proposed applicant ..." In his view the words of Order 53, rule 4(1) were clear and did not admit of any such implication.

27. Mr Coleman went to some lengths to distinguish Presvac on its facts, noting that in that case the delay had been incurred in waiting for the evidence to support known grounds of review, whereas in the case presently before this court the grounds for judicial review could not have been known until the reasons of the Appeal Board were forthcoming. He relied in particular on observations made by the Court of Appeal in Re Wan Kam-wing [1986] HKLR 123, wherein the particular point before the court concerned the issue of from which point the three month time limit for applications for certiorari under Order 53 rule 4(2) began to run, the conclusion being that it began to run from the conclusion of the proceedings complained of whether or not some other form of appeal procedure was undertaken in the interim. The comfort which Mr Coleman took from that case, however, was that the court unanimously held that time did not begin to run until the conclusion of the disciplinary proceedings in question, and that these proceedings were regarded as not having been concluded until the reasons were handed down by the disciplinary inquiry in question which had been set up under the Customs and Excise Service (Discipline) Rules, Cap.342, and that the judge at first instance had been right in holding that the three month period in question had run from that date.

28. I do not consider that this decision is of particular assistance on its facts, and I agree with the submission of Mr Dykes that the observations by the Court of Appeal in that case need to be read in the context of the statutory rules governing those specific disciplinary proceedings.

29. Perhaps the only case to which reference has been made which is actually on point is an English first instance decision which was located by Mr Dykes during the several months in which this appeal stood adjourned. This is a decision of Richards J, sitting in the Queen's Bench Division, in R v. Rochdale Metropolitan Borough Council, ex parte Milne (1999), unreported, for which a Lexis transcript of the judgment helpfully has been made available. In this case the applicant had applied to the Rochdale Metropolitan Borough Council for registration of certain land as a village green. The relevant committee of the council rejected the application, oral reasons being given on the date of such rejection, namely 16 March 1999, whilst a written notice setting out the reasons, dated 13 April 1999, was received by the applicant three days thereafter, on 16 April 1999. The applicant had (as in the present case) chased the written reasons, and had stated at the time that he was considering an application for judicial review of the decision.

30. The first issue in that case was whether the application for permission to apply for judicial review was made promptly and in any event within three months, and if not, whether there was good reason to extend time so as to allow the application to proceed. Faced with an argument that the date from which time began to run was the date upon which the written reasons were received by the applicant, Richards J held that this was incorrect, and that the time when the ground for the application first arose was 16 March 1999, that is, the date of the committee decision which the applicant sought to quash. The judge stated that in his view there was a clear decision of the authority made on 16 March, with oral reasons given at that time, and that an applicant is not entitled to sit back and wait until notice of the written reasons : "the clock was ticking against him so far as the three months time limit is concerned. He cannot come to this court and say it did not start to tick until the written notice was received or sent".

31. I respectfully agree with the approach thus adopted, which in my view is correct as a matter of principle. In my judgment, therefore, on this point the argument of Mr Dykes is right, and that of Mr Coleman is wrong. Judicial review is a discretionary remedy that operates in respect of decisions which have legal consequences : see Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374 at 408, per Lord Diplock. As such, as Mr Dykes submitted, an applicant does not ask the court to review the reasons for a particular decision but instead asks that the decision in question be reviewed on the grounds of flawed decision-making otherwise amenable to review. Sometimes the flaw is patent and is revealed at the time of the hearing, on other occasions the flaw is disclosed in the reasons given for the decision. But whatever the circumstances of the particular case, it is the decision itself which is attacked by the process of judicial review.

32. The fact that on occasion applications will be out of time because 'grounds' only later are discovered is not unique to public law litigation, and as Mr Dykes has pointed out, any potential harshness is ameliorated by the fact that, notwithstanding the statutory requirement of promptitude, extensions of time are possible where there has been a lack of it. I note in this context that the clear terms of Order 53 rule 4(2) provide that where the relief sought is an order for certiorari, the date when grounds for the application first arose shall be taken to be the date of the specific judgment, order, conviction or proceeding which is under attack.

33. In the case presently before this court, the decision of the Appeal Board on 14 January 2003 was a substantive decision creating enforceable rights, in this case Mr Hui's right to an Amusement Games Centre licence, and it is this decision, and no other, that the Commissioner sought to review. I agree with the contention that the Board's action in stating that reasons were to be supplied at a later date may have served to bring the case within the saving provision for late applications included within Order 53, rule 4(1) - "unless the Court considers that there is good reason for extending the period within which the application should be made" - but equally in my view the subsequent notification of the reasons given by the Board for overruling the decision of the Commissioner in the matter of Mr Hui's application for a new licence did not serve to convert the operative date from which time was to run to the date of the supply of such reasons as against the date of the decision itself.

34. It follows from the foregoing, therefore, that in my judgment the learned judge below was in error in holding that the Commissioner's application was made within three months from the date when the 'grounds' for it first arose, and that this appeal must succeed on this ground. I accept the contention that the interpretation adopted below is one that will lead to uncertainty, and if correct, as Mr Dykes has suggested, would make time-limits effectively dependent on the foibles of any particular decision-maker in terms of when reasons for any potentially reviewable administrative decision were handed down.

Extension of time

35. In light of my conclusion that the Commissioner's application for leave was made outwith the statutorily prescribed three month period, a question arises as to a grant of an extension of time. This issue was neither canvassed before nor considered by the learned judge below, since the applicant for leave throughout had approached the case on the basis that the application was within time, a submission which the judge had accepted. Before this court the question of an extension of time was raised only at the end of the first day of the hearing, when, in response to a query from the court, Mr Coleman submitted that if it were thought to be necessary, this was a case in which an extension of time should be granted.

36. In any event, argued Mr Coleman, the question of the chronology of the case and any delay and consequent prejudice could be taken into account by the judge at the substantive hearing of the judicial review. Nor should it be forgotten, he submitted, that reference to 'delay' and consequential prejudice in this case was somewhat artificial in terms of the present dispute as to the application for leave since, had this appeal not been mounted, the substantive hearing already would have taken place on 31 July 2003, the date fixed for the expedited hearing by Hartmann J.

37. This latter point possesses a certain forensic appeal. Mr Dykes's short response to that submission, however, was that his client was able to pursue the application to set aside leave on the ground of delay only at this stage. Thus, once leave to proceed had been granted, then unless set aside, as his client now was endeavouring to do, the grant of leave did not fall to be reopened at the substantive hearing, citing in this regard the observations of Lord Slynn in R v. Criminal Injuries Board, ex parte A [1999] 2 AC 330, at 341. I accept this submission. Once leave has been granted, and either has not been challenged or has been upheld, the issue of leave is no longer alive, although it nevertheless remains open to the court, pursuant to the provisions of section 21K(6) of the High Court Ordinance, Cap.4, to refuse to grant substantive relief on the ground of delay.

38. Accordingly, said Mr Dykes, he made no apology for pursuing this appeal because it represented the only way in which his client could take advantage of what was considered to be a good point. Nor, he submitted, should there now be any question of an extension; the issue had never been raised below, and now for the first time it had been belatedly requested by counsel on behalf of the Commissioner, an application which itself was six months out of time No good reason had been shown, he asserted - in fact, the only reason was a misconception as to the law, which was insufficient - and there was also the issue of prejudice to Mr Hui Kin and to another third party who had made a considerable investment, in terms of fitting out costs, consequent upon the decision of the Appeal Board in favour of Mr Hui's licence application, and before any application had been launched by the Commissioner for leave to apply for judicial review of this decision.

39. When the issue was first canvassed on this appeal, Mr Coleman noted (at paragraph 21 of his skeleton argument) that the learned judge below could not be criticized for forming the view that a period of seven weeks was reasonable in the circumstances of the case, and further that, even if it were thought that time ran from 14 January 2003 "the judge would plainly have granted an extension of time for making the application" in light of the expiry of the three month period by three days.

40. The answer to that, it seems to me, is that the learned judge may, or may not, have acted as Mr Coleman thus speculated. The short point is that this issue was never placed before him, and that such observations as were made by the judge were made in a context in which he was content, and had so found, that the application had been made within time. Had he been appraised of the true situation, namely that the clock indeed had been ticking since the date of the decision on 14 January 2003, the learned judge may well have cast a beady and more critical eye on the time that had been permitted to elapse before the application had been mounted.

41. Accordingly, in the somewhat unusual circumstances of this case I consider it appropriate that the application for an extension of time should be remitted to the learned judge, who will be in a position now to exercise his unfettered discretion on this issue in light of the observations made in this judgment. If he is minded to grant an extension the matter will proceed to a full hearing and any necessary directions can be made; if not, Mr Hui will be permitted to enjoy the decision which was made in his favour by the Appeal Board on 14 January 2003.

Conclusion

42. It follows from the foregoing that in my judgment this appeal should be allowed, and the case sent back to the court below for consideration of the issue of extension of time.

43. I would further make an order nisi that the interested party should have the costs of this appeal, to be taxed if not agreed, and that he should also have the costs of the hearing below, such costs to be taxed if not agreed.

Hon Woo VP :

44. I have had the advantage of reading Stone J's judgment in draft. I agree entirely with him on his reasoning and conclusions. I merely wish to add one observation of my own.

45. The application for leave to take out judicial review proceedings was expressed as seeking a certiorari to quash the respondent's decision "pronounced orally on 14 January 2003 and in Written Reasons dated 25th February 2003 ('the Decision')" and is therefore subject to Order 53, rule 4(2) of the RHC.

46. Order 53, rule 4(2) reads :

"(2) Where relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding."

47. It is a deeming provision: the date of the decision sought to be quashed is deemed to be the date when grounds for the application first arose as provided for in rule 4(1). Here, the decision challenged was "pronounced orally" on 14 January 2003, although the written reasons were dated 25 February. The date of the decision is 14 January 2003. What the applicant seeks to quash must be, or at least include, the decision, for it would be futile to just quash the reasons and let the decision stand. It is therefore abundantly clear that when the application was made on 17 April 2003, it was on the third day after the expiry of the three-month period stipulated in rule 4(1).

48. Accordingly, the appeal is allowed with the order nisi as to costs as proposed by Stone J.