CACV 769/2000 & CACV 104/2001
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEALS NOS. 769 OF 2000 & 104 OF 2001
(ON APPEAL FROM HCAL NOS. 2324 OF 2000 & 2751 OF 2000)
|BASE TOP DEVELOPMENT LIMITED
|COMMISSIONER OF POLICE
Coram: Mayo V-P and Keith JA in Court
Date of Hearing: 8 March 2001
Date of Judgment: 8 March 2001
J U D G M E N T
Keith JA (giving the first judgment at the invitation of Mayo V-P):
1. Massage establishments in Hong Kong are regulated by the Massage Establishments Ordinance (Cap. 266) ("the MEO"). They can only be operated lawfully if a licence for their operation is in force (section 4(1)). Such a licence can only be granted to a natural person (section 6(4)) and lasts for only 12 months (section 6(7)). These appeals concern what happens when the existing licensee dies.
2. The facts are not in dispute. The Applicant owns and operates a massage establishment at premises in Jordan Road. The manager of the establishment was Tse Hang Pak. He had been the licensee of the establishment since 1996. The licence had been renewed every 12 months, and had last been renewed for a period of 12 months from 27 September 1999.
3. The licensing authority under the MEO is the Commissioner of Police ("the Commissioner"). On 24 July 2000, Mr Tse applied to the Commissioner for the renewal of the licence for a further 12 months from 27 September 2000 when it would otherwise have expired. However, on 22 August 2000, Mr Tse died. By then, his application for the renewal of the licence had not been determined. Accordingly, on 29 August 2000, the Applicant's solicitors wrote to the Commissioner applying for the transfer of the licence to a new licensee, Ma Hoi Ching, who it was proposed would manage the establishment in place of Mr Tse. Although the Applicant's solicitors' letter did not expressly state the section of the MEO on which reliance was being placed, the section of the MEO providing for the transfer of a licence is section 9, which provides:
"(1) Except as provided in this section, a licence shall not be transferable.
(2) The licensing authority may, on sufficient cause being shown to his satisfaction and subject to any conditions as he may think fit to impose, permit the transfer of an existing licence until its expiration to another person and such transfer shall be endorsed on the licence." (Emphasis supplied)
4. The application for the transfer of the licence to Mr Ma was refused by the Commissioner. That refusal was communicated to the Applicant's solicitors by letter dated 27 September 2000. Two reasons for the refusal were given in the letter. First, the licence had ceased to be "valid" when the previous licensee had died. Secondly, only the outgoing licensee could apply for the transfer of the licence. The Commissioner added that if the Applicant wished to operate a massage establishment at the premises, an application for a new licence would have to be made. Until such an application had been granted, no massage services could be provided at the premises.
5. The Applicant applied for leave to apply for judicial review of the decision that the licence could not be transferred to Mr Ma. After a hearing inter partes, Yeung J refused the application for leave: see  4 HKC 341. The Applicant now appeals to the Court of Appeal. However, on the same day as they filed the Applicant's notice of appeal, the Applicant's solicitors wrote to the Commissioner again. This time, they applied for the licence either to be amended to name Mr Ma as the licensee or to be substituted by another licence in the name of Mr Ma. The provision on which the Applicant relied on this occasion was section 46 of the Interpretation and General Clauses Ordinance (Cap. 1) ("the IGCO"), which provides (so far as is material):
"Where any Ordinance confers power upon any person to ... grant ... any ... licence ..., such power shall include power -
(a) to amend ... such ... licence ...;
(b) to substitute another ... licence ... for one already ... granted ...; ... and
(d) to declare the date of the coming into operation, and the period of operation, of any such ... licence ... "
The Commissioner refused that application as well. That refusal was communicated to the Applicant's solicitors by letter dated 11 November 2000. The Commissioner took the view that section 46 of the IGCO could not "be allowed to contradict the legislative intent" of the MEO. The Applicant applied for leave to apply for judicial review of that decision. Yeung J refused that application - this time without a hearing. The Applicant now appeals against that decision to the Court of Appeal as well.
The consequences of the Commissioner's decisions
6. Mr Johnny Mok for the Applicant has painted a vivid picture of the financial hardship which the Applicant would suffer if the licence could not have been transferred to Mr Ma, or amended to name him as the licensee, or substituted by another licence in his name. The Applicant would have to apply for a new licence, a process which Mr Mok described as "long, tortuous and uncertain". Each of the notices of application for leave to apply for judicial review (which the Applicant's solicitors purported to verify on affirmation) contained the following passage:
"The Applicant would have to re-submit all the design plans of the Premises for vetting by the Buildings Department and the Fire Services Department on building structural safety, fire safety and other related matters. The Police Licensing Office [would] then aggregate the comments from these Department[s] and conduct their own inspection for compliance with their detailed guidelines, before a determination on a fresh application for a licence may be made. If modifications to the Premises are required, there would be a further substantial delay during which construction works would have to be carried on before there can be any final determination."
I would add that enquiries would also have to be made by the police to determine whether the proposed licensee was a fit and proper person to hold the licence. While these steps were being taken,...