Chow v Honiara Liquor Licensing Board [1998] SBHC 129; HCSI-CC 152 of 1998 (30 October 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 152 of 1998

ROBERT CHOW

-v-

HONIARA LIQUOR LICENSING BOARD

HIGH COURT OF SOLOMON ISLANDS
(PALMER J.)
Civil Case No 152 of 1998

Hearing: 27th October, 1998
Judgment: 30th October, 1998

Bridge Lawyers for the Appellant
R. Johnson for the Respondent

PALMER J.: The Appellant was desirous of setting up a night club known as “Club Paradise” in the vicinity of what was formerly the “REG Store” on Mendana Avenue; more accurately delineated as Lot 698/I/H Parcel No. 191-022-78. The premises intended to be used is part of a two storey building which houses two separate casino businesses; the Honiara Casino and the Solomon Casino. The former is located on the western end of the building whilst the latter is located on the first floor. Club Paradise was intended to operate from the ground floor. Detailed architectural plans of the said building and premises I am told were made available to the Honiara Liquor Licensing Board (“the Board”) during the hearing of the Appellant’s application.

In order to set up a successful night clubbing business, the Appellant needed a publican’s licence to enable him to sell liquor to his clients, hence the application to the Board under section 19 of the Liquor Act (Cap. 33). The Board convened on 17th July, 1998 to consider the application. The relevant part of the record of proceedings of the Board read as follows:

“The applicant was asked to leave while the Board considered the matter. Concerns expressed by the Board during their deliberations were the health report according to which the premises were still in a mess and the locality of the premises with two existing casinos in the same building. It was felt that the latter would be a bad mixture with every likelihood of interaction between the three establishments at some point in time (which was likely to cause unnecessary problems involving breaches of the peace). Linked to this, it was felt that the Board should consider the spirit of the law contained in the Liquor Act which prohibits a licensee from permitting a game of chance on his licensed premises and therefore is aimed at separating gambling from the consumption of liquor. In the applicant’s favour the Board noted the applicant's evidence that there were separate entrances to the casinos and the club and that people leaving one would have to go round the building to enter the other. However on balance the Board decided to refuse the application.

The applicant was called in and the Chairman advised him that his application had been refused mainly on the basis of the location of the premises, ie.·the existence of two casinos in the same building. The Board were of the view that it is not appropriate to have the sale and consumption of liquor in the same building as a casino. The law says there should be no gambling where there is a liquor licence and to grant a licence would therefore be against the spirit of the law. There was also a risk of breaches of the peace.”

Aggrieved by the decision of the Board the Appellant applied to this Court under section 33(1) of the Act to have the decision of the Board set aside on the grounds that the decision was erroneous in point of law, or as being in excess of jurisdiction.

The first argument raised pertained to the constitution of the Board. This is the jurisdiction question. Learned Counsel for the Appellant points out that section 16(2) of the Liquor Act as amended provides:

“The Board shall consist of a Magistrate to be appointed by the Premier acting in accordance with the advice of the Chief Magistrate in that Province who shall be Chairman and each of the following persons as members”-

Mr. Nori argues that the Chief Magistrate is disqualified from sitting as Chairman in that he cannot at the same time provide advice as to the Magistrate to be appointed and recommend himself to be appointed by the Premier; in this case, the President of the then Honiara Town Council. In that regard his appointment was defective and resulted in a Board sitting which had no capacity to deliberate on the matters before it by virtue of his disqualification.

Learned Counsel argues that the function prescribed by the legislation of a Chief Magistrate is that of an adviser. In that capacity, he can only provide advice about the capacity of other magistrates and not himself. He stresses in particular, the point that this is crucial where there are a number of magistrates available within the town boundary.

Respectfully however, though there is merit in what he has raised, and as a rule of thumb the Chief Magistrate should recommend other Magistrates than himself, if this court were to succumb to such an argument would result in unnecessarily restricting the meaning of the said provision. All that is required of the Chief Magistrate is to give advice as to which Magistrate should be appointed. There may be a whole host of reasons given, (completely valid), why no other Magistrate available may be recommended and that the only other Magistrate available to do the job is the Chief Magistrate himself. There is nothing on the wording of the said provision which says that the Chief Magistrate may not be able to give advice as to his own appointment or to recommend himself. The provision does not expressly exclude him from taking such action. An advice by the Chief Magistrate, that he is the only Magistrate available to do the job albeit unusual, is no less an advice. Whilst a Chief Magistrate oversees all Magistrates within the country, he is no less a Magistrate who is able and available to act as Chairman of a Liquor Licensing Board. The anomaly if any, is insufficient to invalidate the decision or actions of the Board. In any event, section 34 of the Interpretation and General Provisions Act 1978 would validate the actions of the Board in spite of such defect if any.

The second ground raised is that of unreasonableness. That the Board took into account an irrelevant factor; in the language used by Lord Greene M.R. in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 K.B. 223, “...the authority must disregard those irrelevant collateral matters” which are not germane to the matter in question. In other words, he must exclude from his consideration those matters which are irrelevant to what he has to consider. Mr. Nori points out that the Board committed an error of law that went to jurisdiction by taking into account an irrelevant factor and thereby acted unreasonably and reaching an unreasonable decision. And the irrelevant factor taken into account was section 76 of the Liquor Act which states:

“If any licensee permits any game of chance whatsoever to be played on his licensed premises, or if such licensee or any servant or person in charge of such premises connives at the playing of any such game therein, such licensee, servant or person and every person so playing shall be guilty of an offence and shall be liable for a first offence to a fine of fifty dollars, and for a second or any subsequent offence to a fine of two hundred dollars”.

In the decision of the Board quoted earlier, it was clear this factor weighed heavily in the mind of the Board. The Board was particularly concerned that a publican’s licence would be issued to a business running a night club within the same building which also houses two separate casino businesses. The Board correctly took into account the likely effects that might occur as a result of having a night club with a publican’s licence operating from the same building. Unfortunately, the Board went too far in concluding that it was against the spirit of section 76 if approval was granted. The words of section 76 are crystal clear. It relates to gaming in licensed premises. And “licensed premises” as correctly referred to by Mr. Nori is defined in section 2 of the Liquor Act as “means any premises or place in respect of which a licence, other than a club licence, has been granted”. A licence therefore is confined to the premises in which it is intended to be used. This is to be distinguished from different premises within the same building. Section 76 only applies to gaming in licensed premises; nothing about the sale of liquor and gaming in different premises in the same building.

I am told the Appellant took extra care in making it clear to the Board that the premises in which the publican’s licence was to be operated from was separate and distinct from the Casino businesses. Further, he pointed out that the entrance and exit to Club Paradise would be at opposite ends to the entrances and exits of those Casino businesses, so as to minimise any intermingling or interferences between their respective customers. So much so that if any customer of the Casino businesses wish to enter the said club premises or vice versa, they would have to go around the building. Whilst these are relevant matters for the Board to take into account, and I accept the Board did take these into account and rightly so, the Board unfortunately failed to appreciate or to rightly distinguish that section 76 did not exclude the possibility that a night club with a publican’s licence may be operating from the same building as a casino but in different premises. It is neither against the letter or spirit of section 76 of the Liquor Act. To say that the spirit of section 76 is against this possibility happening, clearly wrong and a wrong application of that provision.

Section 76, for purposes of determining whether a publican’s licence should be issued to Club Paradise in my respectful view is irrelevant. The approval and operations of a casino are handled by a completely different Board; the Gaming and Lotteries Board (section 10A of the Gaming and Lotteries Act as amended). The prime concern of the Liquor Licensing Board are the matters specified in the Liquor Act, in particular sections 19 and 23(4); not section 76. There is no evidence to suggest to the Board that there is any possibility that any gaming would take place in the said premises if a publican’s licence is granted to Club Paradise, in spite of the fact that two casino businesses are operating from the same building. The Appellant is only too aware of this offence and had gone to lengths to highlight the distinction and separation of the operations of those activities to his proposed business. It is not for the Board to presume that section 76 would be breached and thereby refuse to grant a licence.

I appreciate that the Board did take into account other matters which it was entitled to consider. Unfortunately, by taking this irrelevant factor into account, and bearing in mind what the Board had said, that it had decided to refuse the application of the Appellant on balance, I am satisfied the Board thereby acted unreasonably and reached an unreasonable decision that warrants the intervention of this Court.

I have considered the authorities relied on by learned Counsel for the Respondent, but these do not say anything much different from the crucial principle laid down in the Wednesbury Case (ibid) regarding relevant and irrelevant matters which the tribunal or licensing authority is required to take into account or to disregard.

On the questions of law raised by learned Counsel for the Respondent filed 28 September 1998, respectfully I must decline to be drawn into expressing an opinion when those matters are not directly connected to this case and even if an opinion is given, it would only be that, having persuasive value. They would best await another day if and when such issues arise and are raised in litigation.

On the question of costs, it is my respectful view that the Appellant will have to bear his own costs bearing in mind the fact that the erroneous decision reached was done in the exercise of its statutory functions.

The appeal is upheld and the decision of the Honiara Liquor Licensing Board quashed. The Board will have to reconvene and re-hear the application of the Appellant taking into account all relevant factors and disregarding “irrelevant collateral matters”.

ORDERS OF THE COURT:

1. UPHOLD APPEAL.

2. QUASH DECISION OF THE HONIARA LIQUOR LICENSING BOARD.

3. DIRECT THAT THE BOARD RECONVENE TO RE-HEAR THE APPLICATION OF THE APPELLANT DE NOVO.

4. THE APPELLANT TO BEAR HIS OWN COSTS.

THE COURT.