HK Municipal Services Appeals Board Overview

In this section, I’m going to talk about the Municipal Services Appeals Board and its functions in relation to appeals against decisions of the Liquor Licensing Board. 

The Appeals Board itself is a three-member Board that decides matters, afresh, de novo. In other words, it is the Liquor Licensing Board when it meets. It can decide, all over again completely differently, and indeed based on any evidence that it wants to hear. 

Essentially it’s like having a Liquor Licensing Board hearing a second time around. A lot of people, especially lawyers have to be very careful of this because it’s not helpful to massively attack the Liquor Licensing Board for deciding something because the Appeals Board will simply say “Well we’re here to decide it again …go ahead and convince us.” One must keep an eye on that. 

In terms of procedure, it’s relatively simple. Once the Liquor Licensing Board decision is in hand. Anybody who’s an applicant can appeal the decision by filling in the forms that the Appeals Board requires completed.

Some outline grounds of the appeal should be added, and then the form can be filed.

Once that’s taken place, it triggers a timeline under the ordinance within which the Liquor Licensing Board have to produce their statutory reasons for their decision, and once those reasons are in hand, an appellant will start to compile their appeal submissions, based upon that reasoning.

Just remember again, it’s really important that even if the reasoning of the Liquor Licensing Board is wrong, it does not mean that the Appeals Board can’t reach exactly the same decision by way of a different type of reasoning; or based on different facts. 

There is a lot of care that has to be taken to ensure that in the period between a decision of the Liquor Licensing Board, and an Appeals Board hearing, which takes place about three months later; that things don’t happen, which would somehow create new information, new evidence, new problems or new indications that the Appeals Board can take into account in evidence from the Police from ‘objectors’ or from ‘politicians’, which didn’t even exist before the Liquor Licensing Board made the decision.

All of that is potentially admissible if the Chairman of the Appeals Board allows it, and could significantly affect the way a decision gets made.

What I’m saying here is that an applicant for a licence may have a rather good position before they go to the Liquor Licensing Board and yet, in the period between a decision that’s being appealed, and the appeal itself, make their position worse by their conduct.

It is, I must say, extremely unlikely that the Appeals Board would make a decision that’s more severe than the decision of the Liquor Licensing Board on appeal. However, that again is always a possibility; if they are very unimpressed with what they hear at the appeal hearing.

So, the appeal form has been filed in the month or so notice period, within which the Liquor Licensing Board prepare their statutory reasons has expired, (and) the appellant has in hand those reasons, and is drafting their submissions. 

The Appeals Board will set a deadline for the submissions of materials from both sides, before the appeal and will set an appeal date. As I said, this is approximately three months after the hearing of the Liquor Licensing Board. 

There are some exceptional situations where the Appeals Board can be asked to meet earlier. 

For example, if a premises faces cancellation of its Liquor Licence by the Liquor Licensing Board, which of course would be destructive, or a refusal to renew which puts the business out of business and effectively shut. 

A shutdown for three months could cause massive economic loss, and impact a business, even if the decision was wrong and reversed later on appeal. 

There is a mechanism, now in place, which I’ve worked on for years, whereby the Appeals Board will meet in a specific case where (merit demands it) and make an interim decision about the Liquor Licensing Board’s underlying decision.

It is a challenge, of course, to get the Appeals Board to, in effect, ‘stay’ the decision of the Liquor Licensing Board, and, let alone renew the licence for a period, up to the time the Appeals Board can hear the appeal, but it has been done. It can be done, and it is technically a difficult but obviously, ultimately effective route to follow if a client’s facing total business collapse due to a decision of the Liquor Licensing Board. 

The appeal hearing itself is a relatively simple procedure. 

Unlike the Liquor Licensing Board, the Municipal Services Appeals Board is convened on a needs basis; it would normally deal with several cases at one time (sitting).

The parties to the appeal are invited into the chamber. Again, much like the Liquor Licensing Board objectors are allowed to be present; politicians are frequently allowed to speak. Unlike the Liquor Licensing Board, the Liquor Licensing Board itself, which is usually the respondent in the appeal will be legally represented by, very often, a Government Counsel. 

This is slightly unusual because it is (the Liquor Licensing Board) an independent statutory body that the government would be provided with its lawyers but that is the procedure in practice. And both the solicitors or barristers for the applicant who is now the appellant are present.

Again, like the Liquor Licensing Board, the appellant can be present as can witnesses, and any members of the management or ownership of the company that employs the appellant or operates the licence premises (and interested parties).

The procedure is slightly different than the Liquor Licensing Board, evidence is given under oath, normally, but the Chairman again controls the conduct of the hearing. 

Unlike the Liquor Licensing Board, a more legalistic approach applies. 

First to speak is usually the appellant because it is the appellant’s appeal, not an objector and not the Police, they don’t get to go first (Unlike in the Liquor Licensing Board). 

Then the Chairman will usually invite the respondent, if that’s the Liquor Licensing Board’s representative, to speak. Once those two sets of positions are clear, and normally they will be pretty clear because the written submissions will have been put forwards; only then other things will proceed. 

Usually, the Chairman will have some questions on the appellant’s submissions, or indeed on the response of the Liquor Licensing Board that arise from the materials, and those will be the points that the Appeals Board is interested in learning about; and trying to clarify. 

Then, if objectors or politicians wish to have a say the Chairman will consider whether they should be allowed to speak, they’ll be invited to give evidence, and to a limited extent, the Chairman will also allow an appellant to cross-examine the witness. To that extent it’s more like a court proceeding; evidence under oath, (usually), cross-examination of the witnesses and follow-up.

Then in wrap-up in conclusion, the Chairman will allow the respondent to speak, and the appellant to speak as to how they seek the matter to be concluded.

In terms of the decision itself, it’s rather in the hands of the Chairman. The Appeals Board have sometimes simply asked the parties to leave (the room) and then call them back quite swiftly, giving their decision in short form with a formal more reasoned decision to be given later.

Other times (the Appeals Board) asked the party to leave and said they will communicate their decision, and that decision then comes by letter but not with the formal reasons, and sometimes the decision is simply handed down in a final form with reasons.

Obviously, if it’s one of those urgent cases where an interim decision is being sought; one would hope to get it right there and then, or at least in writing very quickly afterwards.

The Secretariat of the Municipal Services Appeals Board is separate from that of the Liquor Licensing Board and is the one that all parties deal with to make sure things are lined up and in order before any hearing.

As to how long it takes to get a decision from the Municipal Services Appeals Board, that’s entirely up to the relevant Chairman, the workload involved, and how quickly it can be written up finally.

If an applicant or an appellant is unhappy with the decision of the Municipal Services Appeals Board, the next step is Judicial Review. 

That is a totally separate topic and one which I’ll cover another time.​

Link to Judicial Review Overview