TAI PUI MAN AND ANOTHER v. APPEAL BOARD UNDER THE SMOKING

TAI PUI MAN AND ANOTHER v. APPEAL BOARD UNDER THE SMOKING

The correct approach is to give 'mainly used' and 'primarily engaged' their ordinary meanings and to assess an establishment's status by reference to its regular and general use as a whole (including but not limited to turnover data); the Appeal Board failed by focusing on discrete periods and types of food and by omitting consideration of turnover arguments, rendering its decisions unlawful; accordingly the Board's confirmations of the Director's removals were quashed and matters remitted for reconsideration.

Citation
TAI PUI MAN AND ANOTHER v. APPEAL BOARD UNDER THE SMOKING
Parties
1st Applicant (hcal16/2008): Arthur Loh Kok Cheong; 2nd Applicant (hcal16/2008): Mark East Enterprise Limited; 1st Applicant (hcal58/2008): Tai Pui Man; 2nd Applicant (hcal58/2008): Bull and Bear Limited; 1st Applicant (hcal66/2008): Castro Analiza Saguinsin; 2nd Applicant (hcal66/2008): Entertain Company Limited; Respondent / 1st Respondent: Appeal Board under the Smoking (Public Health) Ordinance; Interested Party / 2nd Respondent: Director of Health
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
8 October 2008
Case Number
HCAL58/2008
Procedural Posture
Judicial Review (constitutional and Administrative Law) / Judgment: Appeal Board Decisions Quashed and Remitted; Stay Granted Pending Reconsideration
Outcome
Judicial review allowed; Appeal Board decisions upholding Director's removals quashed; matters remitted to Appeal Board for fresh decisions; Director's removals stayed pending reconsideration; costs awarded to applicants.
Legal Topics
Qualified Bar Definition, Smoking Ban Exemption, Judicial Review – Reasonableness, Interpretation of 'mainly' and 'primarily', Remittal for Rehearing
Source Language
EN
Constitutional Law Administrative Law Public Health Law Statutory Interpretation Regulatory Enforcement Qualified Bar Definition Smoking Ban Exemption Judicial Review – Reasonableness +2 more

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Parties

Arthur Loh Kok Cheong

1st Applicant (hcal16/2008)

Mark East Enterprise Limited

2nd Applicant (hcal16/2008)

Tai Pui Man

1st Applicant (hcal58/2008)

Bull and Bear Limited

2nd Applicant (hcal58/2008)

Castro Analiza Saguinsin

1st Applicant (hcal66/2008)

Entertain Company Limited

2nd Applicant (hcal66/2008)

Appeal Board under the Smoking (Public Health) Ordinance

Respondent / 1st Respondent

Director of Health

Interested Party / 2nd Respondent

Procedural Posture

Judicial Review (constitutional and Administrative Law) / Judgment: Appeal Board Decisions Quashed and Remitted; Stay Granted Pending Reconsideration

Legal Issues

  1. 1 Whether each establishment qualifies as a 'Qualified Bar' under Schedule 6 s.4(1) of the Smoking (Public Health) Ordinance (Cap 371)
  2. 2 Proper meaning and application of 'mainly used' and 'primarily engaged' in the statutory definition
  3. 3 Whether turnover (sales composition) is determinative of status

Ratio Decidendi

The correct approach is to give 'mainly used' and 'primarily engaged' their ordinary meanings and to assess an establishment's status by reference to its regular and general use as a whole (including but not limited to turnover data); the Appeal Board failed by focusing on discrete periods and types of food and by omitting consideration of turnover arguments, rendering its decisions unlawful; accordingly the Board's confirmations of the Director's removals were quashed and matters remitted for reconsideration.

Court Disposition

Judicial review allowed; Appeal Board decisions upholding Director's removals quashed; matters remitted to Appeal Board for fresh decisions; Director's removals stayed pending reconsideration; costs awarded to applicants.

Orders

  • Quash Appeal Board decisions upholding the Director of Health's removals from the List of Qualified Establishments in HCAL 16/2008, HCAL 58/2008 and HCAL 66/2008
  • Remit each case to the Appeal Board for re-consideration according to law