Constitutional and Administrative Law Proceedings2006

WONG FUNG LUI v. THE COMMISSIONER FOR TELEVISION AND ENTERTAINMENT LICENSING

Related cases with same parties

CACV106/1993KO CHUN KWEI v. THE COMMISSIONER FOR TELEVISION AND ENTERTAINMENT LICENSING
HCA2127/2003LINKY CHANCE LTD v. THE COMMISSIONER FOR TELEVISION AND ENTERTAINMENT LICENSING
HCAL14/2006CHENG SUK YEE v. THE COMMISSIONER FOR TELEVISION AND ENTERTAINMENT LICENSING

Files (2)

56366-EN-2007-02-01

HTML content

HCAL1/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1 OF 2006

-----------------------

BETWEEN

	WONG FUNG LUI (黃風雷)	Applicant
	and
	THE COMMISSIONER FOR TELEVISION AND ENTERTAINMENT LICENSING	Respondent

-----------------------

Before : Hon Chu J in Chambers

Date of submissions : 28 November, 11 & 18 December 2006

Date of Decision : 1 February 2007

----------------------------------

DECISION ON COSTS

----------------------------------

1. By Judgment handed down on 4 October 2006, I granted the applicant’s application for judicial review and made an order nisi that the Commissioner for Television and Entertainment Licensing (“the Commissioner”) paid the applicant the costs of the application, to be taxed if not agreed.

2. By summons dated 18 October 2006, the Commissioner applied to vary the costs order nisi such that:

(1) The Commissioner pays the applicant’s costs save and except the costs of and incidental to the preparation of the hearing bundles; and

(2) The applicant be ordered to pay the Commissioner’s costs incidental to and arising out of the rejection of the hearing bundles.

3. Pursuant to directions made on 14 November 2006, the Commissioner and the applicant had filed written submissions on the application. By letter dated 19 December 2006, the applicant’s solicitors indicated that an oral hearing was not required. Accordingly, the hearing scheduled for 11 January 2007 was vacated.

The application to vary

4. The subject matter of the Commissioner’s application to vary is the costs arising out of the preparation of the hearing bundles for the judicial review application.

5. In substance, the Commissioner contends that because of the applicant’s failure to comply with Practice Direction SL3 (“PD SL3”), the applicant should be disallowed the costs in connection with the preparation of the bundles. The Commissioner further says that the non-compliance had resulted in wasted costs, which should be borne by the applicant.

6. The applicant opposes the application. In the first place, he denies the hearing bundles did not comply with the requirements of PD SL3. Alternatively, he says that it was the Commissioner’s delay in providing the English translation/ certified English translation of the exhibits that led to the need to revise the hearing bundles, hence the incurrence of wasted costs. It is further said that the wasted costs is minimal.

The Facts

7. The facts that are relevant to the application can be summarized as follows.

8. On 3 January 2006, the applicant filed the Form 86A herein applying for leave to apply for judicial review. The Form 86A contained two Attachments. Attachment I set out the relief sought. Attachment II set out the grounds of the application with the documents in support annexed to it as the annexures (“the Annexures”).

9. Leave to apply for judicial review was granted on 9 January 2006. On 12 January 2006, the Department of Justice (“DOJ”) acting for the Commissioner agreed to the hearing be expedited provided the Commissioner had no less than 56 days to file her evidence, as prescribed by Rules of the High Court.

10. The Notice of Motion was filed on 16 January 2006. The hearing of the judicial review was fixed for 23 and 24 March 2006. On 22 February 2006, the applicant amended Attachment II to Form 86A with the consent of the Commissioner.

11. The Commissioner filed the Affirmation of Tang Kwok Fai on 10 March 2006 (“TKF Affirmation”). Among the exhibits to the TKF Affirmation are two letters written in Chinese from two neighbourhood committees to the Commissioner (exhibits TKF-2 and TKF-3). They are not accompanied by English translations.

12. By letter dated 13 March 2006, the applicant’s solicitors, Messrs Chung Fong & Co (“CF”), wrote to DOJ requesting that: (1) the English translations of the exhibits to the TKF Affirmation that are in Chinese to be supplied on or before 15 March 2006; and (2) the certified English translations to be supplied on or before 20 March 2006.

13. As requested, DOJ faxed and delivered by hand to CF the English translations of the two exhibits on 15 March 2006 at 3:08 pm and 4:39 pm respectively. The translations comprised six pages in total.

14. At close to 12 noon on the same day, before the English translations reached CF, CF sent the DOJ a set of three hearing bundles. An identical set was lodged with the court in the same morning. This first set of bundles consisted of:

(1) The Applicant’s Bundle of Documents;

(2) The Applicant’s Bundle of Annexures to Amended Attachment II; and

(3) The Applicant’s Bundle of Affirmation.

15. As the titles suggest, the bundles contained only the documents and affirmation of the applicant. The TKF Affirmation and the exhibits to it were not included. In the letter accompanying the bundles, CF asked the DOJ to supply the certified translations immediately so as to enable it to prepare further bundle. As an alternative, it suggested that the DOJ could prepare its own bundle with the certified translations included in it.

16. Not surprisingly, the DOJ wrote on the same day complaining against the exclusion of the Commissioner’s evidence from the hearing bundles. It further pointed out that the arrangement and format of the bundles did not comply with PD SL3.

17. By letter faxed after 8:30 pm on the same day, CF disputed that the hearing bundles were wrong in form. The letter explained that the hearing bundles were prepared expeditiously to enable counsel to make preparations for the hearing and that it was not expected that there would be objection to the filing of another bundle containing the Commissioner’s evidence after the certified translation was supplied. CF further asked the DOJ to identify the objections to the bundles filed and served and the reasons for the same.

18. On 16 March 2006, the applicant lodged with the court a fourth bundle entitled “The Applicant’s 2^nd Bundle of Affirmation”, which contained the TKF Affirmation and the exhibits to it as well as the English translations of the two exhibits. The applicant’s skeleton submission was lodged at the same time.

19. On 17 March 2006, CF served on the DOJ a second set of hearing bundles made up of:

(1) The Applicant’s Bundle of Documents;

(2) The Applicant’s Bundle of Annexures to Amended Attachment II;

(3) The Applicant’s Bundle of Affirmation; and

(4) The Applicant’s 2nd Bundle of Affirmation.

20. Other than the inclusion of the evidence filed on behalf of the Commissioner by the addition of The Applicant’s 2^nd Bundle of Affirmation, this second set of bundles is the same as the first set.

21. By a letter dated 17 March 2006, the Court directed CF to comply with PD SL3 with particular reference to para.1.9.3 on the proper contents and format of hearing bundles. CF was also asked to provide a list of authorities and the authorities to be relied on at the hearing.

22. Subsequently by a letter faxed in the late afternoon of the same day, CF requested the DOJ to return in the following morning the second set of bundles “for the purpose of making [sic] amendments”. In the submission opposing the present application, CF elaborated that this was for the purpose of adding the appropriate references to the bundles. The DOJ refused the request pointing out that the Commissioner’s counsel had used the second set of bundles in preparing his skeleton submission.

23. By the same letter, CF also served draft indices on the DOJ to seek its agreement. The DOJ replied to point out that the draft index did not comply with para.1.9.3 of PD SL3.

24. On 18 March 2006, the DOJ lodged and served the Commissioner’s skeleton submission.

25. Then on 20 March 2006, CF served on the DOJ a new bundle called “Bundle of Exhibits”, which was said to be for the purpose of replacing the Applicant’s Bundle of Affirmation and the Applicant’s 2^nd Bundle of Affirmation. However, this new bundle did not contain the affirmation filed on behalf of the Commissioner. This was the only bundle served on the DOJ, although CF’s letter accompanying the new Bundle stated that the Applicant’s Bundle of Affirmations was also served with it. The DOJ wrote to CF on the same date, pointed out, among other matters, that they received only the Applicant’s Bundle of Documents, and the contents of which were the same as the Bundle of Documents in the second set of bundles.

26. Also on 20 March 2006, CF served an amended skeleton submission with insertion of references to the latest revised bundles.

27. Finally on 21 March 2006, CF sent to the DOJ an additional bundle, namely, the Applicant’s Bundle of Affirmations. Both the affirmation of the applicant and TKF’s Affirmation were included in this bundle.

28. On 22 March 2006, the DOJ lodged with the Court the revised skeleton submission containing revised references to the latest set of hearing bundles.

PD SL 3

29. Para.1.9.3 of PD SL3 is relevant to this application to vary. It provides:

“Contents of bundle. The bundle should contain copies of:

(a) the notice of application in Form 86A;

(b) the affidavits in support and the exhibits to them;

(c) the completed Form CALL-1;

(d) the notice of motion;

(e) the decision challenged if not separately exhibited;

(f) any further affidavits (including those filed on behalf of the respondent, if any) and the exhibits to them; and

(g) any orders made in the course of the proceedings.

The bundle should be properly indexed, and dividers should be used. The preparation of bundles should not simply be the mechanical reproduction of materials. Thought should be given to the format which would be of greatest use to the judge. In most cases, it will be more convenient for the exhibits to be in a separate section of the bundle. In that event, the exhibits should follow each other chronologically (without the front or back sheets), i.e. in the order in which they came into existence, rather than the order in which they were produced as exhibits, and should be accompanied by an index identifying the exhibit by page and exhibit number. In any event, to enable the judge to find quickly a document referred to in an affidavit, the number of the page at which the document can be found should be marked at the side next to the appropriate part of the affidavit.”

30. Para.1.9.3 further contains an extract from the judgment of Stock J (as he then was) in Bahadur v. Secretary for Secretary, unreported, HCAL18/1999 as follows:

“The Bundle of Documents and Practice Directions

I take this opportunity of reminding practitioners of the text of Direction 1.9.3 of the Constitutional and Administrative Law List Practice Directions

…

The bundle prepared in this case by those acting for the applicant had no regard to that Direction. Indeed, had they set out to disobey it in every detail, they could not have fared better. There was simply placed into one bundle a series of affirmations with exhibits attached; the index failed to identify even a single key document; the exhibits followed no chronological order of any kind; and in between affidavits and their exhibits were thrown a letter here, and a summons there, and a couple of notices of application.

I would like to think that practitioners who present bundles in that sort of condition would change their ways if they knew how difficult it is for a court to prepare for a case, then to follow a case, and then to work on the judgment, when faced with such an unhelpful bundle of documents.

Practitioners should please take note that henceforth, in cases within this List, the presentation of a bundle in this condition is likely to result in an adjournment with a requirement that the costs thrown away be borne by the solicitors personally.”

The applicant’s hearing bundles

31. The several sets of hearing bundles lodged and served by the applicant are unsatisfactory in a number of aspects. They are:

(1) The omission of the evidence filed on behalf of the Commissioner from the bundles meant that the hearing bundles were simply incomplete, thereby defeating the most basic purpose of a hearing bundle. As a matter of fact, the DOJ was only provided with a complete set of bundles by 21 March 2006.

(2) The separation into initially three and later four hearing bundles was unnecessary. The papers of this application are in no way voluminous or complicated. All that is required is one combined bundle of court documents and affirmations and another bundle of exhibits. This would have made the hearing bundles useful and easy to use.

(3) The separation of the Annexures to Amended Attachment II and the exhibits to the TKF Affirmation is particularly unnecessary. The Annexures are in substance the documentary exhibits relied upon by the applicant, and should in the first instance be made exhibits to the supporting affirmation. That aside, they should have been combined with the other exhibits to form a single bundle of documentary exhibits, which should be chronologically arranged.

(4) The Bundle of Exhibits, which contained only the exhibits to the TKF Affirmation, was not properly indexed. The Index only showed the exhibit numbers, without any description of the documents, let alone the dates.

(5) In the initial set of hearing bundles provided by the applicant, dividers were not used. Further, the page references of the Annexures and exhibits were not marked next to the appropriate parts of Amended Attachment II of the Form 86A and the affirmation.

The applicant’s costs

32. The essence and spirit of para.1.9.3 of PD SL3 is that preparation of bundles should not simply be the mechanical reproduction of materials. Instead, thought should be given to the format and arrangement so that the bundles are of greatest use to the Court as well as the parties. The unsatisfactory features identified above demonstrate that very little thought and care had been applied in the preparation of the hearing bundles for the judicial review application. The several revisions of the bundles further suggest that little attempt was made to familiarize with and properly understand the requirements of PD SL3 in respect of the format and arrangement of the bundles. Although the applicant does not accept it, it is a fact that the hearing bundles do not comply with PD SL3.

33. In the submissions opposing the present application, the applicant complained that the TKF Affirmation was only served on 10 March 2006. This is irrelevant. Under Order 53 rule 6(4) of Rules of the High Court, the Commissioner had 56 days within which to file and serve her evidence. Further, it was agreed between the parties that although the hearing of the judicial review would be expedited, the Commissioner would still have 56 days to prepare and serve her evidence. As the applicant’s submissions acknowledged, the TKF Affirmation was served within the 56 days’ period.

34. It was further argued on behalf of the applicant that the inadequacies of, hence the need to revise the bundles, were due to the DOJ’s delay in providing the English translations of the two exhibits to TKF Affirmation. The applicant’s submissions also complained that the TKF Affirmation was irregular in that the two Chinese exhibits were not accompanied by English translations or certified English translations. Reference was made to section 27 Evidence Ordinance, cap.8 and section 1 of Official Languages (Translation) Rules, cap.5B. I am unable to see how these arguments assist the applicant in explaining the shortcomings of his hearing bundles.

35. The first and fundamental point is that there is no reason why the TKF Affirmation and the exhibits to it could not have been included in the first set of hearing bundles. The unavailability of the English translations of two of the exhibits is no justification for excluding the entire affirmation from the bundle. It also does not warrant creating two separate bundles of affirmation. In my view, the simple and logical course is to include the TKF Affirmation in the hearing bundles as in the normal course. As and when the English translations were received, they could then be inserted into the bundle of exhibits. It is important to note that the DOJ never refused to provide the English translations.

36. Secondly, the time for the service of the hearing bundles is four clear days before the hearing: para.1.9.1 of PD SL3. This fell on 17 March 2006. It was said in the applicant’s submission opposing the present application that CF served and lodged the hearing bundles on 15 March 2006 for fear that any delay would result in the hearing being adjourned, thereby occasioning detriments to the applicant. This fear is unwarranted given in light of the time prescribed under PD SL3. In any event, if there was a concern about complying with the time limit under the practice direction, the applicant could and should have sought from the court a relaxation of the time limits consequent upon the agreement to expedite the hearing.

37. Thirdly, the translations were served on CF within the time stipulated by it. If it was the intention to have the hearing bundles ready on 15 March 2006, then CF should have asked the DOJ to supply the English translations on or before 14 March 2006. As noted above, there is no point in serving an incomplete set of hearing bundles. Further, given that the English translations were expected to be available on 15 March 2006, it would have been prudent to wait and to serve a complete set of bundles either later in the day or on the following day.

38. Fourthly, the revisions of the hearing bundles after 15 March 2006 and the associated confusions had nothing to do with the supply of the English translations.

39. The applicant’s submission refers to the applicant’s request for a copy of the memo form the District Lands Officer (Yuen Long) dated 29 October 2004, which was referred to in the TKF Affirmation. The applicant made the point that the Commissioner should have exhibited it to the affirmation and that the failure to do so contributed to the delay in the completion of the applicant’s skeleton submission for the judicial review application. However, the fact is the applicant did not make the request until 16 March 2006, some 6 days after being served with the TKF Affirmation. Further, the DOJ provided the memo promptly within a few hours after the request was made. Moreover, this memo did not feature in the hearing bundles at all. This memo is irrelevant to the issue of costs that the court is now dealing with.

40. In short, the pitfalls in the hearing bundles and the problems surrounding their preparation cannot be shifted to the Commissioner or the DOJ. The costs of the applicant for and incidental to the preparations of the hearing bundles, including the costs of revising the bundles and counsel’s skeleton submission, are not proper and necessary costs, such that they should not be borne by the Commissioner.

Wasted costs

41. The second part of the Commissioner’s summons seeks a wasted costs order against the applicant. In this connection, there is a dispute between CF and the DOJ as to whether the first set of hearing bundles had been rejected by the court on 15 March 2006. The DOJ said this was what they were told by a staff of the court. This is a dispute that could not be resolved on the papers before the court. It is in any event not necessary to decide on the dispute. The crucial and most relevant point is whether the hearing bundles are in order. For reasons that I had alluded to, they are plainly not. The directions from the court with regard to the hearing bundles as communicated in the letter dated 17 March 2006 is a clear reflection of the court’s dissatisfaction of the bundles that had been produced.

42. The Commissioner’s case for a wasted costs order is twofold. First, unnecessary and wasted costs had been incurred as a result of the extensive correspondence, telephone calls and attendance by the DOJ with regard to the hearing bundles. Second, as a result of the revisions and changes to the hearing bundles, extra time and costs had been incurred in the preparation of the Commissioner’s skeleton submission.

43. Having regard to the analysis above, the applicant simply has no answer to this part of the application. The indisputable fact is that the DOJ had to engage in numerous correspondences with CF over the preparation of hearing bundles. The DOJ and the Commissioner’s counsel had also to grapple with several sets of bundles, which were either incomplete or not easy to use. The argument that although the hearing bundles had been revised, not much changes was involved, is quite beside the point. When the revised bundles were served, there was no indication of what the changes were. It was therefore necessary to go through the bundles and make a comparison before one realized what revisions were made. Whether this involved minimal costs, as the applicant seeks to argue, is also irrelevant. It is a matter for taxation.

44. The applicant’s submission raised the point that PD SL3 did not require the parties to agree on the indices of the hearing bundles beforehand. This is correct. But it does not assist the applicant. The Commissioner’s submission pointed out that the DOJ had suggested that CF provided a draft index for their comments before proceeding to produce the hearing bundles, but the suggestion was not taken up. The relevance of this fact is to show that much of the problems and costs surrounding the preparation of the hearing bundles could have been avoided.

45. In my view, the Commissioner’s costs of and wasted as a result of the hearing bundles should be paid by the applicant. There is no application under Order 62 rule 8 of Rules of the High Court. I therefore need not deal with it.

Conclusion

46. For the reasons above, the application to vary the costs order nisi is allowed. In its place, I make the following costs order:

(1) The Commissioner pays the costs of the applicant the costs of the judicial review application, save and except the costs of and incidental to the preparation of the hearing bundles, to be taxed if not agreed; and

(2) The applicant pays the Commissioner’s wasted costs incurred as a result of the revisions of the hearing bundles and the consequential revisions of the Commissioner’s written submission for the judicial review application, to be taxed if not agreed.

47. Applying the normal rule of costs follow event, I also make an order that the applicant pays the Commissioner the costs of this application to vary the costs order nisi, to be taxed if not agreed.

(C Chu)
Judge of Court of First Instance
High Court

Messrs Chung Fong & Co for the applicant.

Mr Bethany WK Choi, Government Counsel of the Department of Justice for the respondent.

54430-EN-2006-10-04

WONG FUNG-LUI v. THE COMMISSIONER FOR TELEVISION AND ENTERTAINMENT LICENSING

HTML content

HCAL1/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1 OF 2006

-----------------------

BETWEEN

	WONG FUNG-LUI (黃風雷)	Applicant
	and
	THE COMMISSIONER FOR TELEVISION AND ENTERTAINMENT LICENSING	Respondent

-----------------------

Before : Hon Chu J in Court

Date of Hearing : 23 March 2006

Date of Judgment : 4 October 2006

-----------------------

J U D G M E N T

-----------------------

1. In this judicial review, the applicant seeks to quash the decisions of the Commissioner for Television and Entertainment Licensing (“the Commissioner”) refusing to grant an amusement game centre licence to the applicant. The decisions were communicated to the applicant by letters dated 7 November and 15 December 2005, in which the Commissioner indicated that she could not possibly grant a licence to the applicant unless he has obtained permission from the Town Planning Board to operate an amusement game centre on the premises in question. The applicant also seeks an order of mandamus to compel the Commissioner to issue the licence in compliance with the order made by the Amusement Game Centre Appeals Board on 25 August 2005.

The Facts

2. On 30 August 2004, the applicant applied to the Commissioner for the grant of an amusement game centre (“AGC”) licence in respect of the premises situated at Shop 3-8, 10-16, 55-65 and part of Corridor Podium, Richly Plaza, Phase II, 1 Tin Wu Road, Tin Shui Wai, New Territories (“the Premises”). Prior to that, the applicant had entered into a provisional tenancy agreement for the renting of the Premises. The formal tenancy agreement was subsequently executed by his company, Crown Stand Investment Limited.

3. Richly Plaza is a commercial building.

4. In considering the application, the Commissioner sought comments from various government departments and bureaus, but not the Planning Department. Objections were received from several individuals and organizations, including Legislators, District Councillors, estate owners committees as well as local residents.

5. On 2 March 2005, the Commissioner refused the application on the ground that she was not satisfied that the Premises were located in an area suitable for the operation of an AGC as required under section 5(4)(b)(ii) of the Amusement Game Centres Ordinance (“the AGCO”). The order was communicated to the applicant by letter dated 3 March 2005.

6. The applicant appealed against the refusal to the Amusement Game Centres Appeal Board (“the Appeal Board”).

7. On 7 July 2005, the Appeal Board by a majority allowed the appeal. The Reasons for Decision was published on 25 August 2005. Paragraph 38 set out the order of the Appeal Board as follows:

“[T]he Respondent’s decision in her letter dated 3^rd March 2005 was reversed and the Respondent’s order dated 2^nd March 2005 was substituted with an order that the licence be granted to the Appellant for a trial period of 9 months with the Special Conditions of Licence set out in the Schedule annexed hereto and such other conditions which the Respondent may impose.”

8. By a letter dated 17 September 2005, the Commissioner informed the applicant that she would give further consideration to the application. The applicant was however required to comply with certain fitting out requirements in relation to ventilation, fire and safety as well as lighting and noise control before a licence would be issued to him.

9. Thereafter the applicant engaged contractors to carry out the necessary work to meet the requirements stipulated by the Commissioner in her letter.

10. On 22 and 23 September 2005, two estate owners committees wrote to the Commissioner pointing out that the Premises were situated in an Residential (Group B) zone on the draft Tin Shui Wai Outline Zoning Plan (“OZP”) No. S/TSW/9. Upon enquiry made by the Commissioner, the District Planning Officer advised on 2 November 2005 that unless the AGC was an existing use before the OZP was gazetted on 21 October 1994, permission for such a use was required from the Town Planning Board.

11. By letter dated 7 November 2005, the Commissioner informed the applicant that she had been advised that under the Notes to the OZP, an amusement game centre is a place of entertainment, which is a Column 2 use requiring planning permission from the Town Planning Board. As such, unless the amusement game centre was an existing use before the first gazettal of the OZP on 21 October 1994, the applicant was required to obtain planning permission. The Commissioner went on to state: “If you have not complied with the regulations laid down by the Town Planning Ordinance (Cap. 131), I cannot possibly grant an AGC licence to you.” The letter concluded by saying: “I would like to remind you that this letter and my letter issued to you dated 17 September 2005 shall not be taken as the grant of a licence to you. When making a final decision on whether to issue a licence, I will consider all the circumstances of the application as a whole, including whether the captioned address has complied with other relevant requirements and other laws of Hong Kong.”

12. Thereafter, there was a series of correspondence between the applicant’s solicitors herein and the Department of Justice on behalf of the Commissioner in connection with the issue of planning permission.

13. By letter dated 9 December 2005, the applicant informed the Commissioner that the Premises were ready for inspection by her staff.

14. The Commissioner replied by letter dated 15 December 2005, reiterating the points in her earlier letter of 7 November 2005. The applicant was asked to provide the relevant information and proof if he had already applied to the Town Planning Board for planning permission. The last paragraph of the letter stated that if the applicant had not complied with the regulations laid down by the Town Planning Ordinance, the Commissioner could not grant any AGC licence.

The application for judicial review

15. On 3 January 2006, the applicant commenced these proceedings. Leave to judicial review was granted on 9 January 2006. The Notice of Motion was filed on 16 January 2006.

16. The applicant challenges the Commissioner’s decisions communicated in the two letters of 7 November and 15 December 2005 on a number of grounds. They are:

(1) The decisions are ultra vires in light of the Appeal Board’s order that an AGC licence be granted to the applicant for a trial period of nine months with special conditions.

(2) The Commissioner had taken into account irrelevant consideration by considering planning permission from the Town Planning Board to be a relevant consideration.

(3) The Commissioner committed an error of law in considering that she may take planning matters into consideration.

(4) It was an abuse of discretion for the Commissioner after requiring the applicant to comply with fitting out requirements, to withhold the AGC licence on a ground relating to planning permission, which is unrelated to the fitting out of the Premises.

(5) The applicant has a legitimate expectation that the Commissioner would not (i) rely on either the Town Planning Ordinance or the OZP as a ground for withholding an AGC licence; or (ii) require the applicant to apply for planning permission; or (iii) refer to the Planning Department or Town Planning Board for comment or advice in respect of his application.

17. In his Amended Form 86A, the applicant had also raised the ground that the Commissioner acted inconsistently. This was not pursued at the hearing. Having regard to the fact that the approval from the Fire Services Department was only given on 15 March 2006, the applicant also did not pursue the relief for damages.

The issues

18. The contentions between the applicant and the Commissioner essentially boil down to two broad issues. The first is whether it is legitimate for the Commissioner to have regard to the provisions in the Tin Shui Wai OZP no. S/TSW/9 and the Town Planning Ordinance. The second is whether the Commissioner may withhold the grant of an AGC licence when the Appeal Board had decided and ordered that a licence be granted to the applicant for a trial period of nine months with special conditions.

Is planning permission a relevant consideration?

19. Under section 5(4)(b)(ii) of the Amusement Game Centres Ordinance, cap. 435, the Commissioner shall not grant a licence unless he is satisfied in relation to the proposed operation of the amusement game centre, that the place of proposed operation is located in an area suitable for the operation of an amusement game centre.

20. Section 13 of the Town Planning Ordinance provides that: “Approved plans shall be used by all public officers and bodies as standards for guidance in the exercise of any powers vested in them.”

21. There is no doubt that the Commissioner is a public officer within the meaning of section 13.

22. It is the applicant’s case that whether he had applied and obtained permission from the Town Planning Board for the operation of the proposed amusement game centre on the Premises is irrelevant to the Commissioner’s consideration of suitability of the area for the operation of an amusement game centre. Mr Cooney argues that on a purposive interpretation, the Amusement Game Centres Ordinance is only concerned with the suitability of the area in respect of nuisance, the types of games and protection of children, but not planning matters. In his submission, planning considerations and enforcement of requirements of OZP are within the remit of the Town Planning Board and the Building Authority.

23. I do not agree that the requirements of a relevant approved plan are irrelevant to the consideration of the Commissioner. Firstly, she is required by section 13 of the Town Planning Ordinance to do so. Secondly, planning permission can be a proper and relevant factor when assessing the suitability of the location of a proposed amusement game centre in terms of any possible nuisance it may cause to the neighbourhood. As in this case, the compatibility of a proposed amusement game centre, being a place of entertainment, with, and its potential impact on, a neighbourhood, which is primarily residential, is as much a matter for the Town Planning Board, as it is a consideration for the Commissioner. It is not an isolated issue of the user of the place. By having a place of entertainment within a residential area may also give rise to various other issues, such as noise, effect on children residing in the area and also law and order generally. Accordingly, whether the required permission from the Town Planning Board has been applied for or granted is not an irrelevant consideration for the Commissioner when exercising her power under section 5(4)(b)(ii) of the Amusement Game Centres Ordinance.

Does the Commissioner retain a discretion under section 5(4)(b)(ii)

of cap. 435?

24. That deals with the general question of the relevance of planning permission to the exercise of the Commissioner’s power. The specific question that arises in this case is whether, notwithstanding the Appeal Board’s decision and order that a licence be granted to the applicant for a trial period of nine months with special conditions, the Commissioner may withhold the issue of the licence unless the requirements of the Tin Shui Wai OZP No. S/TSW/9 that applies to the Premises have been complied with. This in turn calls into consideration two subsidiary questions. The first is whether the Commissioner is correct in her view that without the requisite planning permission, she is bound to withhold the issue of an AGC licence. If her view is incorrect, the next question is whether it is within her power to refuse the issue of the AGC licence in light of the Appeal Board’s decision and order.

25. On the first point, it is the Commissioner’s argument that by reading section 5(4)(b)(ii) together with the Town Planning Ordinance, she has no discretion and is bound to refuse the issue of an AGC licence unless planning permission has been obtained from the Town Planning Board. Mr Wong submits that the use of the words “ shall not grant … unless he is satisfied” in English and “… 除非 … 否則不得” in Chinese (cap 435 was enacted bilingually) demonstrates a clear legislative intent that the Commissioner has no discretion to grant an AGC licence where there is a contravention of the statutes in relation to the suitability of the area in which the proposed amusement game centre will be located.

26. The applicant on the other hand argues that the Town Planning Ordinance does not remove the discretion that the Commissioner has under section 5(4)(b)(ii) of the Amusement Game Centres Ordinance. In support of this argument, Mr Cooney draws assistance from two Court of Appeal decisions in Building Authority v. Head Step Ltd (1996) 6 HKPLR 87 and Wing On Company & Another v. Building Authority, unreported, CACV 168 of 1998. These cases turn on the interpretation of the Building Authority to refuse approval of plans of building works under section 16(1) of the Buildings Ordinance, cap.123. The Court of Appeal held that the word “may” in section 16(1) does not mean “must” and the power of the Building Authority to refuse approval is discretionary.

27. Mr Wong responds by pointing out that in both these decisions, the Court of Appeal had not referred to two earlier first instance decisions, which held that the Building Authority did not have a discretion when there is a contravention of the Town Planning Ordinance, despite the use of the word “may” in section 16(1) of the Buildings Ordinance: Crozet Ltd & Others v. Attorney General [1973-1976] HKC 97, Singway Co Ltd v. Attorney General [1974] HKLR 275, 286-288. It is further argued that section 5 of the Amusement Game Centres Ordinance is drafted differently from section 16(1) of the Buildings Ordinance.

28. In my view, all these authorities are not determinative of how section 5(4)(b)(ii) of the Amusement Game Centres Ordinance is to be construed, whether on its own or read together with section 13 of the Town Planning Ordinance.

29. Subsequent to the hearing of the application, the applicant had, with the Department of Justice’s agreement, drawn my attention to the decision of Reyes J in Cheng Suk Yee v. The Commissioner for Television and Entertainment Licensing, unreported, HCAL14 of 2006. In that case, Reyes J held that section 5(4)(b)(ii) of the Amusement Game Centres Ordinance leaves a discretion on the Commissioner. I respectfully agree.

30. As Reyes J pointed out in his Judgment, in providing that the grant of an AGC licence is upon the Commissioner being satisfied as to the matters stipulated under section 5(4), the legislature plainly contemplates the Commissioner exercising judgment and discretion in considering licensing applications.

31. The Town Planning Ordinance has not removed the discretion conferred upon the Commissioner by section 5(4) of the Amusement Game Centres Ordinance. Under section 13 of the Town Planning Ordinance, public officers and bodies are required to use approved plans as guidance in the exercise of their power. On a plain reading of the section, it does not have the effect of removing the discretion vested in a public officer or body. Accordingly, while the contravention of an approved plan or the non-availability of a planning permission is a material consideration for the Commissioner when she exercises her power under section 5(4), it does not take away her statutory discretion. She is not bound to refuse the issue of an AGC licence because of non-compliance of an approved plan. The Commissioner is therefore in error in considering that she cannot issue an AGC licence to the applicant unless he has obtained planning permission from the Town Planning Board.

The Appeal Board’s decision and order

32. In the circumstances, the Commissioner is bound by the decision and order of the Appeal Board. It is a fact that when she first considered the application and decided against it, she had not consulted the Planning Department or the Town Planning Board and her attention was not drawn to the Tin Shui Wai OZP No.S/TSW/9. However, that does not entitle her to revisit the deliberation process after the appeal was concluded and especially in light of the Appeal Board’s decision and order that an AGC licence be granted to the applicant for a trial period of nine months with special conditions. The Commissioner already had the opportunity to and did consider the issue of suitability of the Premises for the operation of the proposed amusement game centre. During the process, she could have consulted the Planning Department and/or the relevant approved plan and applicable planning requirements, but she had not done so. Her eventual decision to refuse the application was reversed on appeal to the Appeal Board. When implementing the decision and order of the Appeal Board, it is not open to the Commissioner to re-consider the suitability of the Premises for the operation of the proposed amusement game centre as if she was dealing with the application afresh.

33. Accordingly, the Commissioner decision to withhold the issue of an AGC licence unless the applicant has obtained planning permission from the Town Planning Board isultra vires. The judicial review application should be allowed on this basis.

Legitimate expectation

34. In the premises, it is not necessary to deal with the challenge based on legitimate expectation in details. It is sufficient to say that although the Guidelines on the application for AGC licence do not refer to the Town Planning Ordinance or OZPs or planning permissions, they cannot give rise to any legitimate expectation as argued by the applicant. There is no unequivocal representation that the Commissioner would not have regard to planning considerations. On the contrary, the Guidelines inform the applicant that the Commissioner would consider the views of other departments in deliberating upon the AGC licence application.

Conclusion

35. For the reasons above, the application for judicial review is allowed. The decisions of the Commissioner as indicated in the letters dated 7 November and 15 December 2005 are quashed. There is also an order of mandamus requiring the Commissioner to act in accordance with the order of the Appeal Board as contained in the Decision dated 25 August 2005 in appeal case no. 82-03/2005.

36. Applying the normal rule of costs follow event, there is an order nisi that the Commissioner pays the costs of the applicant, to be taxed if not agreed.

(C Chu)
Judge of Court of First Instance
High Court

Mr Nicholas Cooney instructed by Messrs Chung Fong & Co for the applicant.

Mr Wesley Wong DPGC of the Department of Justice for the respondent.