ANDREW BRINE AND ANOTHER v. LIQUOR LICENSING BOARD

HCAL 33/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 33 OF 2012

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HCAL 43/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 43 OF 2012

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(Heard together)

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J U D G M E N T

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I. INTRODUCTION

1. HCAL 33 and 43 are judicial reviews involving the validity of a licence issued to Brine by the Liquor Licensing Board (LLB).

II.  BACKGROUND

2. Creative operates a bar named “Muse” on D’Aguilar Street in Central. Brine works for Creative.

3. On 30 May 2011 Brine applied to the LLB for a liquor licence (with bar endorsement) for Muse.  On 12 July 2011 the LLB approved Brine’s application, but on the condition that the licence “would only be issued subject to the issue of a valid restaurant licence”.  Restaurant licences are issued by Government’s Food and Environmental Hygiene Department (FEHD).  The condition was imposed in accordance with the LLB’s normal policy. The LLB informed Brine of its decision (including the condition) by letter dated 14 October 2011.

4. Brine appealed to the Municipal Services Appeal Board (MSAB) against the condition imposed by the LLB.  On 27 February 2012 the MSAB (chaired by Mr. Eric Kwok SC) quashed the condition and allowed Brine’s appeal.  The MSAB concluded: “Therefore, we issue a new liquor licence of 12 months to Mr. BRINE.”  The LLB was directed to issue Brine with a licence accordingly.

5. The LLB did not issue a licence to Brine until 13 March 2011, 15 days later.

6. Even then, the licence which the LLB issued was only valid from 27 February to 11 July 2012, that is, for a period of 4 months and 11 days instead of 12 months.  Note, however, that the expiry of the licence issued by the LLB is the day which is 12 months from the LLB’s 12 July 2011 meeting.

7. The licence issued by the LLB also stated that it was subject to Condition 14 printed on its reverse.  Condition 14 provides: “Except as exempted by the [LLB], the Licensed Premises shall be concurrently covered by a valid restaurant licence.”  It was only by a side letter addressed to the solicitors of Creative and Brine that the LLB stated that Condition 14 was “not applicable” to the licence issued for Muse.

8. The FEHD refused to issue a restaurant licence for Muse.  Brine appealed against that refusal to the Licensing Appeals Board (LAB).  That appeal was heard on 9 January 2012, but the LAB’s decision remains outstanding.

9. By HCAL 33 Brine and Creative seek to compel the LLB to issue a liquor licence which is valid from 27 February 2012 to 26 February 2013 (that is, a period of 12 months from the date of the MSAB’s decision) and which is endorsed on its face (as opposed to a side letter) as not being subject to Condition 14.  It is their case that only such a licence (and not the one actually issued by the LLB) would comply with the MSAB’s decision.

10. Brine and Creative also contend that they are entitled to damages as a result of the LLB’s 15 day delay in issuing any licence following the MSAB’s decision.  They say that, since Muse could not operate without a liquor licence and since a licence could readily have been issued 24 hours after the MSAB’s decision, the LLB is liable to compensate them for the loss of 2 weeks’ business.

11. By HCAL 43 the LLB seeks to quash the MSAB’s decision on two bases.  First, the LLB says that, in coming to its decision, the MSAB wrongly failed to have regard to the LLB’s normal policy of only granting liquor licences subject to the issue of a restaurant licence.  Second, the LLB says that the MSAB failed properly to consider whether there was sufficient access for disabled persons at Muse to make it a suitable establishment for the selling of liquor to members of the public.

12. There is a further twist.

13. On 28 February 2012 Ms. Angie Chan on behalf of the LLB telephoned Ms. Ivy Tang (the MSAB’s secretary) to seek “clarification” of the MSAB’s decision.

14. According to a memo prepared by Ms. Tang on 29 February 2012 summarising the telephone call for Mr. Kwok, Ms. Chan had reasoned as follows:-

“2. In relation to this [MSAB] decision, the [LLB] would like to seek clarification from the MSAB. The Licensing Office states that:-

(i) LLB at its meeting on 12 July 2011 approved Mr. BRINE’s application for a 12-month liquor licence (with bar endorsement). As the premises were at the time applying for a general licence, LLB would issue the said liquor licence to Mr. BRINE subject to the issue of a valid restaurant licence. If the premises were then issued with a Provisional Light Refreshment Licence (PLRRL), LLB would first issue a liquor licence with an expiry date being the same as the PLRRL. Subject to the further issue of a valid Light Refreshment Licence in respect of the premises, the LLB would issue a further liquor licence for the remaining approved period; and

(ii) As per (i) above, the 12-month liquor licence as approved runs from 12 July 2011 (the meeting date) to 11 July 2012.

3.  … Mr. BRINE appealed against the decision of the LLB to issue a 12-month liquor licence by subjecting it to the condition that the premises be issued with a valid liquor licence.  With MSAB quashing the condition made by the LLB in granting the licence, the [LLB] would like to seek clarification on the period of the 12-month licence to be issued to Mr. BRINE.  The approved liquor licence was for the period from 12 July 2011 to 11 July 2012 (paragraph 2(ii) above).  With MSAB’s decision, the licence should now be issued to Mr. BRINE despite the premises has yet to be issued with a PLRRL (or a full restaurant licence).  As such the [LLB] is of the view that the end date of the licence should remain to end on 11 July 2012.”

15. Having received Ms. Tang’s memo, without first seeking Brine’s views nor (apparently) the views of anyone else on the MSAB, Mr. Kwok simply wrote to Ms. Tang on 29 February 2012 as follows: “Agree that the licence expire on 11.7.2012.  On appeal we just move the condition away.  I should have made it clear.  Sorry!”

16. In HCAL 33 Brine and Creative characterise what Mr. Kwok did as an impermissible unilateral decision.  This is because Mr. Kwok acted without first giving Brine and Creative an opportunity to be heard on the question what the MSAB must have meant by its decision.  Brian and Creative argue that Mr. Kwok’s “clarification” was thus a nullity.  They add that M. Kwok acting on his own could not speak for the MSAB as a whole.  They also say that, in any event, whatever its status, Mr. Kwok’s response was wrong in law and plainly the licence had to start from the date of the MSAB’s original decision.

17. The LLB, on the other hand, has applied to set aside the initial leave granted to Brine and Creative to bring HCAL 33.  In support of this, the LLB draw my attention to the following paragraphs of the Affirmation of Leung Pui Fun adduced by Brine and Creative after leave to bring HCAL 33 had been granted:-

“7. I am informed by Mr. Maurice Fung of Messrs. Boase, Cohen & Collins, Solicitors for the Applicants [Brine and Creative], that he first learned of the unilateral communication between LLB and MSAB on 29 February 2012. Mr. Fung informs me that he had a telephone [call] with Ms. Ivy Tang of MSAB, the purpose of which was to chase up for the MSAB’s papers, which LLB had told us they were still waiting for [before LLB could issue a licence].

8. During that conversation, Ms. Tang informed Mr. Fung that LLB had called MSAB on the afternoon of 28 February 2012 and again on the morning of 29 February 2012 seeking ‘clarification’ about the commencement date of the licence. Mr. Fung expressed the view that it was clear that MSAB has issued a new licence on the date of the decision, i.e. 7 February 2012. Ms. Tang informed Mr. Fung that MSAB had already written to Mr. Eric Kwok SC, the Chairman of the MSAB, to clarify.

9. On 1 March 2012 Mr. Fung spoke with Ms. Tang of MSAB again. Ms. Tang informed Mr. Fung that the Chairman (i.e. Mr. Eric Kwok) ‘commented’ that the 12-month period should run from July 2011 when LLB had their first meeting to consider Mr. Brine’s application.

10. The Applicants were wholly unaware, until receiving the Affirmation of Mr. Sheh [of the LLB] in these proceedings, that there had been any ‘decision’ by MSAB or Mr. Eric Kwok that the licence would expire on 11 July 2012.

11.  The Applicants have never been told what was said by LLB in its unilateral communication or correspondence with MSAB. They have also never seen the correspondence between the MSAB secretariat and Mr. Erik Kwok.”

18. The correspondence between Ms. Tang and Mr. Kwok has since been disclosed to the parties and the Court by the MSAB.

19. The LLB argues, on the strength of Ms. Leung’s paras. 7 to 9, that Brine and Creative knew of Mr. Kwok’s clarification before taking out the judicial review in HCAL 33.  The LLB contends that such knowledge ought to have been disclosed as it would have been material to the Court’s decision whether to grant leave for judicial review.  Because it was not disclosed, the LLB says that there was material non-disclosure and so the initial grant of leave should be set aside.

20. There is finally the question of joining the MSAB and Mr. Kwok as parties to HCAL 33.  That is a short question which I can dispose of now.  The MSAB is already a party to HCAL 43.  Neither the MSAB nor Mr. Kwok opposes being joined as parties to HCAL 33.  They have written to the Court to that effect.  They have also very properly said that they do not intend to make any submissions, but instead agree to be bound by the Court’s findings.  In those circumstances, I think it would be appropriate for them to be made parties to HCAL 33.

III.  DISCUSSION

21. I shall deal with the issues in the following order:-

(a)  Whether there has been material non-disclosure by Brine and Creative?

(b)  Whether the MSAB failed to have regard to the LLB’s policy?

(c)  Whether the MSAB failed properly to consider disabled access at Muse?

(d)  Whether the licence issued by the LLB complied with the MSAB’s decision?

(e)  If the licence was non-compliant, what should be the remedy?

(f)  Whether Brine and Creative are entitled to damages for delay in issuing a licence?

A.  Whether material non-disclosure?

22. I do not think that there was material non-disclosure.

23. Leung’s Affirmation shows at best that, prior to the judicial review in HCAL 33, Brine and Creative knew through their solicitors that the LLB had sought clarification of the MSAB’s original decision.

24. They were not given details about the precise nature of the “clarification” being sought.  They were not told, for instance, of what Ms. Chan had said to Ms. Tang by way of explaining the LLB’s reasoning.

25. From the point of view of Brine, Creative and their solicitors, the thrust of the MSAB’s original decision was self-evident. There was really nothing to clarify in the MSAB’s decision which on its face simply called for the issue, without pre-condition, of a licence of 12 months from 27 February 2012.

26. Solicitors for Brine and Creative were later told that Mr. Kwok had “commented” that the licence should run from 12 July 2011.  But they do not appear to have been told anything more than that.

27. In the circumstances, I do not see how, without more, Brine and Creative or their solicitors could possibly have appreciated that the stray, off-the-cuff “comment” of a single MSAB member would have serious ramifications on what they considered to be the obvious meaning of the MSAB’s decision.  I do not see why, without more, they should regard a “comment” as some sort of “clarification” binding on them.

28. There was nothing that would have alerted Brine and Creative to a need to disclose the conversation with Ms. Tang to the Court as part of the duty of full and frank disclosure on a judicial review leave application.  Had they disclosed the meager information which they had (summarised in paras. 7 to 9 of Leung’s Affirmation), the Court would hardly have regarded the same as material to the grant of leave.

B.  Whether MSAB had regard to LLB policy?

29. Municipal Services Appeals Board Ordinance (Cap.220) (MSABO) s. 7 states that the MSAB shall have regard to any statement of policy lodged by a body (like the LLB) whose decision is being appealed against, if certain conditions are met.  Those conditions are that the party appealing was aware of the policy or could reasonably have been expected to be aware of the policy.

30. Here there is no dispute that Brine and Creative knew that, in the normal course of events, the issue of a liquor licence by the LLB is subject to the issue of a valid restaurant licence.

31. Mr. Johnny Mok SC (appearing for the LLB) submits that the MSAB did not have regard to the LLB’s policy when quashing the condition originally imposed by the LLB on the liquor licence.  But, in my view, that submission is untenable.

32. The MSAB evidently had regard to the policy.

33. Thus, the MSAB referred to the policy in para.2 of its decision: “The LLB, following their policy, granted the licence subject to a condition that the Premises are issued with a valid restaurant licence.” But in para.5 the MSAB observed: “The requirement of first obtaining a restaurant licence is not found in the [Dutiable Commodities (Liquor)] Regulations.”

34. The Dutiable Commodities (Liquor) Regulations (DCLR) require that the LLB “shall not grant” a licence unless it is satisfied of certain criteria.  Those criteria (as set out in Regulation 17(2)) are:-

“(a) that the applicant is a fit and proper person to hold the licence;

(b) that the premises to which the application relates are suitable for selling or supplying intoxicating liquor, having regard to:-

(i) the location and structure of the premises; and

(ii) the fire safety and hygienic conditions in the premises;

(c)  that in all the circumstances the grant of the licence is not contrary to the public interest.”

35. The MSAB noted that, according to the LLB, the policy was “adopted so that they [the LLB] do not have to consult other departments such as, Buildings or Fire Services, for every application”.

36. In other words, to ensure that the location and structure of premises as well as their fire safety and hygienic conditions are suitable for the sale or supply of liquor, the LLB normally requires an establishment to obtain a restaurant licence.  The rationale behind this is that, if the premises meet the requirements for the issue of a restaurant licence, it can be assumed that the premises must also be suitable for the sale or supply of liquor to the public.

37. That being the rationale, the MSAB stated (at para.6): “We do not think we have to decide on the legality of the policy in this appeal.  We are of the view that we are guided by Regulation 17(2) and we have to look at the application ourselves and exercise the same power that was given to the LLB.”

38. In other words, it was for the MSAB to place itself in the shoes of the LLB and consider whether to issue a liquor licence by reference to the criteria stipulated in Regulation 17(2).  If (in the MSAB’s view) Muse met those criteria, there would be no need to impose the condition of a obtaining a restaurant licence.  The policy of requiring a restaurant licence was only in place to ensure premises met the criteria in Regulation 17(2), that is, the very thing that the MSAB would itself be looking into in Muse’s case.

39. The MSAB then considered whether each of the criteria in Regulation 17(2) was met in the case of Muse.  It found that the criteria were all met.  It followed that there was “no need for us to consider the policy of the LLB” (see para.9) as that policy was only designed to ensure that the location and structure of Muse met the criteria of Regulation 17(2).

40. There can be nothing to complain here about the MSAB’s approach.  It analysed the rationale behind the LLB’s policy.  Then it carried out an exercise which led to the very conclusion that the policy was intended to bring about.

C.  Where MSAB properly considered disabled access at Muse?

41. The LLB relies on 3 grounds in support of its allegation that the MSAB failed properly to consider whether the means of access for the disabled at Muse were sufficient to make Muse fit for the public supply of liquor.

42. First, the LLB says that the MSAB wrongly accepted that the movable ramps which it was proposed to use at Muse were adequate to comply with the obligations imposed by Regulation 72 of the Building (Planning) Regulations.

43. Second, the LLB says that the MSAB failed to consider that D’Aguilar Street was open to vehicles for most (albeit not all) of the hours during which Muse was proposing to operate.

44. Third, the LLB says that the MSAB wrongly thought that it was relevant to its decision that in all likelihood “very few people with disability will patronise the Premises”.

45. I do not find any of LLB’s 3 grounds of challenge persuasive.

46. First, pursuant to Regulation 72, the Buildings Department (BD) required Muse to have fixed disabled access ramps of particular dimensions and specifications at its premises.  Creative applied to be exempted from that requirement on the basis that it would use movable ramps at Muse instead.  In January 2012 the BD refused an exemption and Creative appealed against that refusal to the Buildings Appeal Tribunal.  The appeal proceedings are ongoing.

47. Mr. Mok submits that, in concluding that the use of movable ramps at Muse would render the premises fit for the supply of liquor, the MSAB wrongly failed to take account of the BD’s refusal to grant Creative an exemption from Regulation 72.

48. The MSAB held as follows:-

“10. Government Counsel argues that there are too many changes in level and no suitable ramp in accordance with Building Regulations are provided makes the Premises not suitable for selling liquor. Counsel for Mr. BRINE submits that provision of suitable and reliable movable ramps is both practical and sufficient in making the Premises suitable to sell liquors. In the course of the hearing, we are being shown photos taken by the FEHD. In one of those photos, the type of movable ramp to be used can be seen. The ramp, we noted, is wide enough for wheel-chair and have guards on the 2 sides.

11. D’Aguilar Street is a street going uphill and close for vehicles during busy hours of bars on both sides of the street. Furthermore, there are steps for one to negotiate if you go from the road onto the pavement and then into the bars. We are of the view that people with disability would probably rarely go to the bars along D’Aguilar Street because of these constraints.

12.  Given that there are suitable movable ramps within the Premises, we are satisfied that the Premises is suitable for selling liquors in view of he fact that very few people with disability will patronize the Premises.”

49. The MSAB was thus clearly aware of Regulation 72 as it refers to the BPR.

50. We have seen how the MSAB regarded its task as evaluating (on the basis of its members’ combined experience in liquor licensing matters) whether Muse met the criteria in the DCLR.  This included assessing whether Muse’s premises were suitable for selling liquor in light of Muse’s location and structure.

51. The MSAB went ahead and carried out precisely that task.  When so doing, it is unclear to me why the MSAB should necessarily accord weight to the views of the BD when discharging the MSAB’s own duty of assessing the structure of premises and when exercising the MSAB’s independent judgment as to whether such premises are suitable for the supply of liquor.

52. It was of course always open to the Government Counsel appearing before the MSAB to refer (if she thought appropriate) to what the BD had decided.  But, regardless of BD’s the views, it would remain her task as counsel for the LLB to persuade the MSAB’s that specific features rendered Muse unsuitable for the sale of liquor.

53. I am unable to fault the MSAB’s exercise of its discretion in coming to a decision.  It independently concluded, from an examination of pictures of the proposed movable ramps and from its estimation that in any event the number of disabled persons using the premises was likely to be low, that there was adequate access for the public supply of liquor.

54. Second, D’Aguilar Street is closed to vehicles from 7 pm to 4 am on Fridays, Saturdays, Sundays and public holidays.

55. The MSAB reasoned that those hours were likely to correspond with the times when Muse was most busy.  That observation would seem to accord with commonsense.  I see nothing to criticise as irrational in the MSAB’s observation.

56. Mr. Mok, however, submits that the MSAB failed to reckon that D’Aguilar Street would otherwise be open to traffic.  In other words, D’Aguilar Street can be reached by car over many more hours than it cannot be reached by car.  This means (Mr. Mok suggests) that there was a fatal flaw in the MSAB’s conclusion that in all likelihood only a few disabled persons would be visiting Muse.  Many more disabled persons could visit Muse during the many more hours when D’Aguilar Street was open to vehicles.

57. I think that Mr. Mok’s argument misses the point.  It may be that D’Aguilar Street can be reached by car over many more hours than when it cannot be reached by car.  But during the former open traffic hours, there could still in all probability be a negligible number of persons (whether disabled or able-bodied) patronising Muse than in the latter restricted traffic hours.

58. It would, for instance, not be unreasonable for the MSAB to have assumed that during normal office hours there would be few (if any) patrons (whether disabled or able-bodied) sipping alcohol at Muse, even though D’Aguilar Street would then be open to vehicles.  I cannot say that the MSAB conducted itself so irrationally as to justify striking down its rough-and-ready estimate of the number of disabled persons likely to use Muse.

59. Third, insofar as the number of disabled patrons is concerned, Mr. Mok submits that the number (large or small) is an irrelevant consideration.  Premises (Mr. Mok stresses) should provide for access by disabled persons regardless of whether the number of such persons using the premises is large or small.

60. But all that the MSAB was doing was to take practical account of the realities of D’Aguilar Street.  One cannot evaluate the adequacy or inadequacy of access for the disabled in a vacuum.  As a matter of law, such access needs to be provided as is reasonable in the circumstances of a particular building or premises.  See, for example, Disability Discrimination Ordinance (Cap.487) s.84(1).

61. The MSAB was certainly not saying that there should be no provision for access by disabled persons.  Nor was the MSAB saying that there can be inadequate access for the disabled at Muse.  Instead, the MSAB was simply saying that in the unique circumstances of Muse (for example, Muse’s proposed use of movable ramps and D’Aguilar Street’s stepped configuration and restricted traffic hours) there was adequate access for disabled persons.

62. Other Government bodies (such as the BD) might reasonably disagree on the question of the adequacy of disabled access.  For instance, Government bodies may reasonably disagree on what are relevant circumstances to take into account and so come to opposing conclusions on adequacy.  The possibility of disagreement over relevant factors and the possibility of different assessments of particular factors would not by themselves render a decision irrational.

D.  Whether licence issued by LLB complied with MSAB’s decision?

63. Mr. Gerard McCoy SC (appearing for Brine and Creative) submits that the licence did not comply with the MSAB’s decision for 2 reasons:-

(a)  The licence was on its face subject to Condition 14 even though the MSAB had quashed the equivalent condition originally imposed by the LLB.

(b)  The licence was not valid for a period of 12 months from the date of the MSAB’s decision (27 February 2012).

64. In my view, Mr. McCoy is correct in his submissions.

65. First, in respect of Condition 14, Mr. Mok contends that the licence has to be read in conjunction with the side letter. Read together, the documents make it plain that the licence was not subject to Condition 14.

66. I disagree.  The hallmark of Government must be openness.  There should be no dispensations granted by way of private side letters.

67. A liquor licence needs to be prominently displayed in an establishment’s premises.  That will enable members of the public (not just the police) to know at a glance precisely what the establishment which they are frequenting is or is not entitled to do.

68. In contrast, there is no legal requirement that side letters be displayed.  In this case, even if the side letter were displayed, its precise import would be obscure.  In actuality, the side letter here is unsuitable for public display.

69. The side letter is addressed to solicitors acting for Brine and Creative, not to Brine or Creative.  It refers to the MSAB’s decision without stating the gist of the same.  It says that “the licensing condition no.14 printed on the licence is not applicable to your client,” but does not identify the client by name.  It states gratuitously that the LLB is “still seeking legal advice on our intended application for leave to judicial review in respect of this [MSAB] Decision”.  Finally, it states ominously “[f]or the avoidance of doubt” that the license is “issued to your client without prejudice to our position in our intended application for judicial review against the Decision”.

70. A member of the public wishing to patronise Muse would have no clear idea from reading the side letter whether the establishment is or is not permitted at any given time to supply liquor.

71. An application by the LLB for judicial review of the MSAB’s decision would not have the effect of staying the effect of that decision.  Brine and Creative were entitled to have a licence issued as soon as practicable after the MSAB’s decision which accurately, unambiguously and transparently incorporated what the MSAB had directed.

72. This means that the licence issued ought to have had typed on its face in the space for “Endorsements” that the premises were exempt from Condition 14 printed overleaf.  If there is to be an exemption from any condition pre-printed on the reverse of the licence form, the exemption should be stated openly on the face of the licence for all to see, not privately in some side letter.

73. Second, in respect of the validity of the licence, Mr. Mok says that by reason of Mr. Kwok’s clarification the licence was rightly issued for a period of 12 months from 12 July 2011.  But Mr. McCoy queries the vires of Mr. Kwok’s clarification.

74. The clarification was made after only hearing the LLB’s argument as put to Ms. Tang by Ms. Chan.  But the MSAB and Mr. Kwok were exercising a judicial function.  In such situation, fairness demanded that Mr. Kwok also hear what Brine and Creative might want to say on the matter, before issuing any clarification.

75. There is another problem.

76. Mr. Kwok appears to have given the clarification of his own motion.  There is no evidence that he consulted the other 2 members of the MSAB before expressing a view on the validity period of the licence.  As a result, Mr. Kwok’s clarification cannot be regarded as reflective of the MSAB’s (as opposed only to Mr. Kwok’s) thinking.

77. Accordingly, Mr. Kwok’s clarification has no validity apart from evidencing what he may have thought after being told what Ms. Chan had argued.  Mr. Kwok had no jurisdiction to make the clarification on behalf of the MSAB as a whole.  He certainly had no jurisdiction to act without at least giving Brine and Creative an opportunity to be heard.

78. That leaves the question: What did the MSAB mean by its direction to the LLB that a licence be issued for a period for 12 months?

79. On this I agree with Mr. McCoy that, as a matter of law and fact, the MSAB’s decision could only have meant one thing.  That meaning was for the LLB to issue a liquor licence in respect of Muse for a period of 12 months from the date of the MSAB’s decision.

80. To begin with, as a matter of fact, following its decision of 12 July 2011, the LLB did not actually issue any licence.  That was because the LLB’s decision was that a liquor licence “would only be issued subject to the issue of a valid restaurant licence”.  See LLB’s letter to Brine dated 14 October 2011.

81. Brine and Creative appealed against the condition that issue of the liquor licence would be “subject to the issue of a valid restaurant licence”.  The condition was not quashed until the MSAB’s decision on 27 February 2012.  Right up to that point, no liquor licence had been issued for Muse.

82. In the premises, as a matter of commonsense, it is difficult to see how the Board’s decision to “issue a new liquor licence of 12 months to Mr. BRINE” could mean anything other than that a first liquor licence (not subject to a condition of obtaining a restaurant licence) be issued to Muse for a 12 month period starting from 27 February 2012.

83. The MSAB’s direction cannot have been a reference to the issue of a first liquor licence from 12 July 2011.  No effective licence was granted on that day.  On the contrary, as already noted, the LLB’s decision on that day was not to grant a licence unless and until a condition (the receipt of a valid restaurant licence) had been met.  There is no logical basis why the 12 months stipulated by the MSAB should count from 12 July 2011.

84. A similar conclusion may be reached, as a matter of law, by reference to MSABO s.15(3) and DCLR Regulation 20.

85. MSABO s.15(3) stipulates:-

“Where the [MSAB] orders that its decision is not to come into operation until a specified date, the decision comes into operation on that date; in other cases the decision of the [MSAB] comes into operation immediately the decision is given.”

86. The MSAB did not specify a date for the coming into operation of the licence which the MSAB ordered the LLB to issue.  The second limb of s.15(3) is thus applicable.  The MSAB’s decision comes into operation “immediately the decision is given”.

87. DCLR Regulation 20(3) then states:-

“A liquor licence shall be valid for a period of 1 year or such lesser period as the Board shall determine, commencing from the date on which it is granted or such other subsequent date as the Board may determine.”

88. The reference to “Board” in Regulation 20(3) should normally be construed as referring to the LLB.  But where the LLB’s role has been assumed by the MSAB sitting on appeal from the LLB, context requires the expression “Board” in Regulation 20(3) to be read as a reference to the MSAB.

89. So, by Regulation 20(3), the MSAB must be regarded as having granted the licence for Muse’s premises on 27 February 2011, the date of the MSAB’s decision.  The MSAB did not determine any “subsequent date” as the start.

90. The LLB argued otherwise.  When seeking clarification from Ms. Tang, Ms. Chan for the LLB argued that, because Brine and Creative were merely seeking by their appeal to the MSAB to quash a condition imposed on Muse’s licence by the LLB, all the MSAB’s decision did was to delete the condition imposed on a licence already granted as at 11 July 2011.  The licence (Ms. Chan suggested) would therefore have retained its original validity period of 12 July 2011 to 11 July 2012.

91. Mr. Mok adopts Ms. Chan’s argument.  But I do not think the argument can be right.  No licence was granted or issued on 12 July 2011.  At its meeting on that date, the LLB only decided that a licence would be granted or issued if a condition precedent was met.

92. Consequently, there never was an effective liquor licence issued or granted for a period from 12 July 2011 to 11 July 2012.  Indeed, if a workable licence had actually been granted as from 12 July 2011, it is curious that Brine and Creative were not informed of the fact until months later on 14 October 2011.

93. This is a different situation from one where a licence is issued or granted on day X and the licence can validly be used from day X onwards, albeit subject to a certain existing state of affairs being continuously maintained.  That sort of licence is certainly subject to conditions.  But the conditions operate differently from the present situation.  If (say) the existing state of affairs stipulated in that sort of licence are not maintained from day X onwards, the licence ceases to be valid.

94. In contrast, no licence was even to be issued for Muse until a certain state of affairs was met at some future date.  No valid liquor licence would be issued or granted until such time as a valid restaurant licence was first obtained.  At that point and that point only would the LLB issue a liquor licence with a validity period co-extensive with the validity of the restaurant licence.

95. Mr. McCoy observes (and I agree) that, insofar as the licence issued by the LLB ran for 12 months from 12 July 2011, there was arbitrariness.  12 July 2011 was the date when the LLB met.  But it was only many months later that, following the MSAB decision, Brine and Creative obtained the right to have issued a licence which could actually be used by Muse.  Why (if that is so) should the months between 12 July 2011 and the MSAB decision be counted towards the validity period of Muse’s licence?  During those months, there would have been no effective licence which Muse could use and Muse could not operate as a bar.  The 12 July 2011 meeting is a purely fortuitous date.

96. It follows from the foregoing that the licence issued by the LLB in March 2012 was not in conformity with the MSAB’s decision.  What the MSAB decided was that a licence (which was endorsed on its face as not subject to a pre-condition of obtaining a restaurant licence) be issued in respect of Muse for a period of 12 months running from 27 February 2012 to 26 February 2013.

E.  What remedy if licence issued by LLB was non-compliant?

97. When a judicial review succeeds, the Court typically remits a matter back to the deciding administrative body for reconsideration in accordance with the Court’s judgment.

98. But here, where it is plain and obvious what the MSAB as a whole must have meant (as a matter of law and fact) by its decision, the Court is entitled to make a Declaration to such effect and to make an order of Mandamus that the LLB comply with the terms of the MSAB’s decision.  There is no point wasting time and cost in remitting the matter back to the MSAB for reconsideration of the self-evident.

F.  Whether damages for 15 day delay in issuing licence?

99. I am not persuaded that there should be damages.

100. Assume (without necessarily accepting) that there was a delay of 15 days before the LLB eventually issued a licence said to comply with the MSAB’s decision.

101. During that 15 day period, Muse could not operate as a bar despite the MSAB’s decision, because Muse did not have a liquor licence.  Assume also (without necessarily accepting) then that Muse lost revenue as a result.

102. The Court can order damages against a public officer if there has been misfeasance by the latter.  There may be misfeasance where a public officer acts in some way knowing that (or being reckless as to whether) one’s act will injure a party X in a certain manner and the public officer intends that (or is indifferent as to whether) X suffers harm in such manner.  See Tang Nin Mun v. Secretary for Justice [2002] 2 HKLRD 324, at 328H - 329A (Ribeiro JA).

103. Even given the assumptions stated above, there is simply no evidence that the members of the LLB (whether individually or collectively) had the mental element necessary to found a case of misfeasance.

104. Accordingly, damages are refused.

105. Mr. McCoy additionally asks for a Declaration that the “decision” by the LLB not to issue a licence until 13 March 2012 was unlawful.  But such a Declaration can serve no useful purpose in the circumstances, apart from supporting Mr. McCoy’s submissions for damages for misfeasance.  There being no evidence of misfeasance, the Declaration is refused.

G.  Summary

106. The LLB’s application to set aside the initial leave granted to Brine and Creative in HCAL 33 is dismissed.

107. The judicial review in HCAL 43 is dismissed.

108. The LLB belatedly sought to amend its Notice of Application for Judicial Review to include the complaint that the MSAB had failed properly to consider disabled access at Muse.  I indicated that I would hear argument on that ground without prejudice to the possibility of later refusing leave to amend.  Given that I have not found merit in the proposed ground, leave to amend is refused.

109. The judicial review in HCAL 33 succeeds in part.

110. There will be a Declaration that, by its decision on 27 February 2012, the MSAB determined that a licence (not subject to a condition of obtaining a valid restaurant licence) should be issued in respect of Muse for a period of 12 months running from 27 February 2012 to 26 February 2013.

111. There will be an Order that the LLB issue a liquor licence complying with the MSAB’s decision as soon as possible.

112. Brine and Creative belatedly sought to amend their Notice of Application for Judicial Review to make complaints in relation to Mr. Kwok’s clarification.  Having heard full argument, I have found those complaints to be justified.  In consequence, leave is granted for their Notice to be amended.

113. The claim by Brine and Creative in HCAL 33 for damages in respect of misfeasance is dismissed.

114. In my view, the Orders summarised above are sufficient to remedy the position in relation to Muse’s operation as a bar. Mr. McCoy asks for a variety of other Orders.  But such other Orders would only duplicate the effect of what I have summarised and so (I believe) are unnecessary.

IV.  CONCLUSION

115. There will be Orders and a Declaration as set out in the Summary to Section III.

116. Brine and Creative having essentially prevailed, there will be an Order Nisi that the LLB pay their costs of HCAL 33 and 43, such costs to be taxed if not agreed with certificate for 2 counsel.

117. There will be no Order in respect of the costs of the MSAB or Mr. Kwok.

118. There will be liberty to apply.

119. Lastly, in argument Mr. McCoy suggested that the LLB’s policy of only granting a liquor licence on condition of obtaining a restaurant licence was ultra vires.  Mr. McCoy submitted that, in effect, the LLB was impermissibly sub-delegating to the FEHD a discretion which the LLB alone should exercise.  It has not been necessary to deal with that submission in this Judgment.  Nothing here should be taken to imply anything as to whether the LLB’s policy is or is not within its jurisdiction to impose.