Wong Sheun Ling v Administrative Appeals Board [2020] 3 HKC 235

Philip Dykes SC (leading Geoffrey Yeung) appeared for the applicant in the Court of First Instance in Wong Sheun Ling v Administrative Appeals Board [2020] 3 HKC 235.

The applicant applied to the Public Officer appointed by the Secretary for Home Affairs for a mahjong / tin kau licence (MJTK Licence). The application was refused on the grounds that the proposed location was not suitable for the establishment of a mahjong / tin kau parlour due to its close proximity to educational institutions and strong local objections. The Public Officer further commented that no sympathetic consideration could be given as the application was not to relocate an existing parlour while the relevant licence was still in force. The Secretary for Home Affairs’ ‘Brief Policy Guidelines on Issue of Mahjong / Tin Kau Licence’ (Guidelines) embodying his policy for issuing MJTK Licences provided that each application would be considered on its own merits and that the Public Officer would consider six major factors, including the suitability of the proposed location (Location Factor), local reaction (Local Reaction Factor) and sympathetic consideration for relocation cases (Relocation Factor). The applicant appealed to the Administrative Appeals Board (Board) against the decision. In support of the appeal, the applicant gave various undertakings including blocking the front of the premises, not to put up advertising signs and complying with necessary conditions relating to sound proofing (Undertakings). The Board dismissed the appeal. The applicant applied for leave to apply for judicial review of the decision and the dismissal of the appeal by the Board.

Held, dismissing the application:

The Relocation Factor

(1) The imposition of a temporal requirement between the previous operation and the current application for a new MJTK Licence before giving sympathetic consideration was rational and reasonable. The fixing of the actual temporal requirement fell within the permissible range which a reasonable decision maker may choose and was not Wednesbury unreasonable (paras 25-27).

(2) The Relocation Factor was not Wednesbury unreasonable. The overriding principle of an application for MJTK Licences was that each application would be considered on its own merits and the Guidelines did not preclude any sympathetic considerations. It would be wrong to focus excessively on the harshness of the application of the Relocation Factor because the overall controlled gambling policy was not intended to be business facilitating. Leung Kam Yung Ivy v Commissioner for Television and Entertainment Licensing [2001] 2 HKC 555 considered (paras 31-34).

The Board’s dismissal of the Appeal

(3) Although the Board correctly held that the Relocation Factor did not apply, it took into account the historical circumstances of the applicant’s case and gave some weight to them (para 31).

(4) The Board was not Wednesbury unreasonable in assessing the effectiveness of the Undertakings. The concept of close proximity under the Location Factor involved not just consideration of the distance but also accessibility and geography. It would be wrong for the court to technically and artificially dissect the thinking process of the Board. Having regard to the Board’s view as regards the ineffectiveness of the proposed measures and that the parolour still required some means of promotion, the Board would inevitably have concluded that the proposed parlour was in close proximity to the educational institutes. Li Wai Hung Cesario v Administrative Appeals Board [2015] 5 HKLRD 575 ; [2015] HKCU 2331 applied (paras 38-39).

(5) For the Local Reaction Factor, there was no valid basis to distinguish objections to the establishment of a proposed parlour arising from opposition to gambling and objections arising from other concerns. The object was to assess the likely extent of objection once the licence was issued. Reasons for such objection were of lessor importance although they cannot be completely ruled out as being irrelevant. The Board did not act irrationally in the applicant’s case in deciding to assess the Local Reaction Factor on the evidence before it (paras 44, 46).

[The above headnote is taken from HKC.]

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