ARTHUR LOH KOK CHEONG AND ANOTHER v. APPEAL BOARD UNDER THE SMOKING (PUBLIC HEALTH) ORDINANCE AND ANOTHER

ARTHUR LOH KOK CHEONG AND ANOTHER v. APPEAL BOARD UNDER THE SMOKING (PUBLIC HEALTH) ORDINANCE AND ANOTHER

The Appeal Board applied an incorrect and unduly narrow approach by focusing on discrete periods and types of food rather than assessing what each establishment held itself out to be doing as a whole; turnover evidence may be relevant but is not determinative; Appeal Board's reasons were inadequate, rendering its...

Source-derived case information.

Citation
ARTHUR LOH KOK CHEONG AND ANOTHER v. APPEAL BOARD UNDER THE SMOKING (PUBLIC HEALTH) ORDINANCE AND ANOTHER
Parties
1st Applicant (hcal 16/2008): Arthur Loh Kok Cheong; 2nd Applicant (hcal 16/2008): Mark East Enterprise Limited; 1st Applicant (hcal 58/2008): Tai Pui Man; 2nd Applicant (hcal 58/2008): Bull and Bear Limited; 1st Applicant (hcal 66/2008): Castro Analiza Saguinsin; 2nd Applicant (hcal 66/2008): Entertain Company Limited; Respondent / 1st Respondent (hcal 16/58/66): Appeal Board under the Smoking (Public Health) Ordinance; Interested Party / 2nd Respondent (hcal 16/58/66): Director of Health
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
8 October 2008
Case Number
HCAL16/2008
Procedural Posture
Judicial Review (constitutional and Administrative Law) / Judgment (consolidated Judicial Review); Remitted for Reconsideration
Outcome
Judicial review allowed; Appeal Board decisions quashed and remitted for fresh consideration; stay of Director's removal pending reconsideration; costs awarded to applicants
Legal Topics
Qualified Bar Definition, Smoking (public Health) Ordinance Schedule 6, Judicial Review, Appeal Board Decision, Statutory Construction of 'mainly' and 'primarily'
Source Language
en
Constitutional and Administrative Law Public Health Law Administrative Law Statutory Interpretation Qualified Bar Definition Smoking (public Health) Ordinance Schedule 6 Judicial Review Appeal Board Decision +1 more

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Parties

Arthur Loh Kok Cheong

1st Applicant (hcal 16/2008)

Mark East Enterprise Limited

2nd Applicant (hcal 16/2008)

Tai Pui Man

1st Applicant (hcal 58/2008)

Bull and Bear Limited

2nd Applicant (hcal 58/2008)

Castro Analiza Saguinsin

1st Applicant (hcal 66/2008)

Entertain Company Limited

2nd Applicant (hcal 66/2008)

Appeal Board under the Smoking (Public Health) Ordinance

Respondent / 1st Respondent (hcal 16/58/66)

Director of Health

Interested Party / 2nd Respondent (hcal 16/58/66)

Procedural Posture

Judicial Review (constitutional and Administrative Law) / Judgment (consolidated Judicial Review); Remitted for Reconsideration

Legal Issues

  1. 1 Whether each establishment is a "Qualified Bar" within Schedule 6 of the Smoking (Public Health) Ordinance
  2. 2 Whether the Appeal Board misconstrued and misapplied the statutory criteria ("mainly used" and "not primarily engaged")
  3. 3 Whether turnover composition is determinative of "mainly used"

Ratio Decidendi

The Appeal Board applied an incorrect and unduly narrow approach by focusing on discrete periods and types of food rather than assessing what each establishment held itself out to be doing as a whole; turnover evidence may be relevant but is not determinative; Appeal Board's reasons were inadequate, rendering its decisions unlawful and liable to be quashed and remitted for reconsideration.

Court Disposition

Judicial review allowed; Appeal Board decisions quashed and remitted for fresh consideration; stay of Director's removal pending reconsideration; costs awarded to applicants

Orders

  • Order Nisi that the Director pays the costs of the Applicants in each judicial review; costs to be taxed if not agreed