CASTRO ANALIZA SAGUINSIN AND ANOTHER v. APPEAL BOARD UNDER THE SMOKING (PUBLIC HEALTH) ORDINANCE AND ANOTHER

CASTRO ANALIZA SAGUINSIN AND ANOTHER v. APPEAL BOARD UNDER THE SMOKING (PUBLIC HEALTH) ORDINANCE AND ANOTHER

The court held that "mainly used" and "primarily engaged" must be construed in their ordinary senses by assessing the regular and general use of the premises as a whole; turnover figures can inform but not conclusively determine that assessment; the Appeal Board erred by focusing on discrete periods and types of food and by failing to address the main use question adequately, rendering its reasons insufficient and unlawful, so its decisions were quashed and the matters remitted for reconsideration.

Citation
CASTRO ANALIZA SAGUINSIN 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 (all Actions): Appeal Board under the Smoking (Public Health) Ordinance; Interested Party (hcal 16/2008); 2nd Respondent (hcal 58/2008 & HCAL 66/2008): Director of Health
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
8 October 2008
Case Number
HCAL66/2008
Procedural Posture
Judicial Review / Judgment Quashing Appeal Board Decisions and Remitting for Reconsideration; Stay of Director's Removals Pending Re Hearing
Outcome
Judicial review allowed; Appeal Board decisions quashed; matters remitted to Appeal Board for fresh determinations; stay of the Director's removals pending re-hearing; costs ordered for Applicants
Legal Topics
Statutory Interpretation, Qualified Bar Definition, Smoking Ban Exemptions, Judicial Review, Remittal, Administrative Reasonableness
Source Language
EN
Administrative Law Constitutional Law Public Health Law Regulatory/tobacco Control Law Statutory Interpretation Qualified Bar Definition Smoking Ban Exemptions Judicial Review +2 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 (all Actions)

Director of Health

Interested Party (hcal 16/2008); 2nd Respondent (hcal 58/2008 & HCAL 66/2008)

Procedural Posture

Judicial Review / Judgment Quashing Appeal Board Decisions and Remitting for Reconsideration; Stay of Director's Removals Pending Re Hearing

Legal Issues

  1. 1 Whether each establishment qualified as a "Qualified Bar" under Schedule 6 s.4 of the Smoking (Public Health) Ordinance (Cap 371)
  2. 2 Proper construction of the phrases "exclusively or mainly used for the sale and consumption of intoxicating liquor" and "not primarily engaged in the sale or supply of meals"
  3. 3 Whether the Appeal Board applied an incorrect or irrational test by focusing on discrete periods or types of food rather than the establishment's general character

Ratio Decidendi

The court held that "mainly used" and "primarily engaged" must be construed in their ordinary senses by assessing the regular and general use of the premises as a whole; turnover figures can inform but not conclusively determine that assessment; the Appeal Board erred by focusing on discrete periods and types of food and by failing to address the main use question adequately, rendering its reasons insufficient and unlawful, so its decisions were quashed and the matters remitted for reconsideration.

Court Disposition

Judicial review allowed; Appeal Board decisions quashed; matters remitted to Appeal Board for fresh determinations; stay of the Director's removals pending re-hearing; costs ordered for Applicants

Orders

  • Quash the Appeal Board's decisions upholding the Director's removals in HCAL 16/2008, HCAL 58/2008 and HCAL 66/2008
  • Remit each case to the Appeal Board for re-consideration applying the correct legal test