COMMISSIONER OF POLICE AND ANOTHER v. MUNICIPAL SERVICES APPEALS BOARD AND OTHERS

COMMISSIONER OF POLICE AND ANOTHER v. MUNICIPAL SERVICES APPEALS BOARD AND OTHERS

The Board erred in law by construing the Ordinance to confine the licensing authority to matters of 'public order and safety' narrowly understood; the Ordinance contains no clear restriction and the licensing authority may consider broader law and order and public interest matters (including drug trafficking and nuisance) provided they are relevant and reasonable; accordingly the Board's decision was quashed and the matter remitted for reconsideration in accordance with law.

Citation
COMMISSIONER OF POLICE AND ANOTHER v. MUNICIPAL SERVICES APPEALS BOARD AND OTHERS
Parties
1st Applicant: Commissioner of Police; 2nd Applicant: Director of Food and Environmental Hygiene; 1st Respondent: Municipal Services Appeals Board; 2nd Respondent: Yeung Kwun Chuen; 3rd Respondent: Sunny Great Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
20 January 2005
Case Number
HCAL22/2004
Procedural Posture
Judicial Review / Final Judgment (order of Certiorari; Remit to Board)
Outcome
Board ruling dated 3 November 2003 quashed by order of certiorari; matter remitted to the Municipal Services Appeals Board for reconsideration in accordance with law; costs awarded to applicants by order nisi.
Legal Topics
Scope of Discretionary Powers of Licensing Authority, Interpretation of 'public Order and Safety' and 'disorder', Use of Legislative History to Identify Mischief, Judicial Review Remedies (certiorari, Remit), Costs
Source Language
EN
Constitutional Law Administrative Law Statutory Interpretation Licensing Law Public Order and Safety Scope of Discretionary Powers of Licensing Authority Interpretation of 'public Order and Safety' and 'disorder' Use of Legislative History to Identify Mischief +2 more

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Parties

Commissioner of Police

1st Applicant

Director of Food and Environmental Hygiene

2nd Applicant

Municipal Services Appeals Board

1st Respondent

Yeung Kwun Chuen

2nd Respondent

Sunny Great Limited

3rd Respondent

Procedural Posture

Judicial Review / Final Judgment (order of Certiorari; Remit to Board)

Legal Issues

  1. 1 Whether the licensing authority under the Places of Public Entertainment Ordinance was limited to considering only matters of 'public order and safety' when deciding PPE licences
  2. 2 Whether the Municipal Services Appeals Board erred in law by excluding considerations such as drug trafficking, nuisance and other law and order/public interest matters from relevant considerations
  3. 3 Whether the Board's decision should be quashed and the matter remitted for reconsideration

Ratio Decidendi

The Board erred in law by construing the Ordinance to confine the licensing authority to matters of 'public order and safety' narrowly understood; the Ordinance contains no clear restriction and the licensing authority may consider broader law and order and public interest matters (including drug trafficking and nuisance) provided they are relevant and reasonable; accordingly the Board's decision was quashed and the matter remitted for reconsideration in accordance with law.

Court Disposition

Board ruling dated 3 November 2003 quashed by order of certiorari; matter remitted to the Municipal Services Appeals Board for reconsideration in accordance with law; costs awarded to applicants by order nisi.

Orders

  • Order of certiorari quashing the Municipal Services Appeals Board ruling dated 3 November 2003
  • Remit the matter to the Municipal Services Appeals Board to determine the appeal in accordance with the law as stated in this judgment