HK Judicial Review (Liquor Licensing) Overview

This section is a short part on judicial review in relation to liquor licensing. I don’t intend to talk about the judicial review itself which is an extremely complex process but just explain where it fits in relation to applications for liquor licenses.

There’s no access to the High Court in relation to a decision of the Liquor Licensing Board that’s easy (if not even possible) because before one gets to the High Court on judicial review, the appeal process that underlies the matter needs to be exhausted.

I’ve already covered the fact that appeals to decisions of the Liquor Licensing Board have to go before the Municipal Services Appeals Board. So, any judicial review would be a judicial review of the Municipal Services Appeals Board decision. 

It might include some peripheral matters of how the Liquor Licensing Board has conducted itself. Ultimately, what’s important to understand, is that in order to get to the High Court in relation to a Liquor Licensing Board decision, you first need to go to the Municipal Services Appeals Board, because the whole structure of appeals needs to be engaged and used; before the High Court will (normally) start to look at the situation. 

There are also other challenges in respect of going to the High Court on judicial review of the Liquor Licensing Board matter, or should I say, a Municipal Services Appeals Board decision. In that the High Court still doesn’t have the power to grant liquor licenses. That law stops with the Liquor Licensing Board and then the Municipal Services Appeals Board, who for the purposes of their conduct become the Liquor Licensing Board with all those powers. In other words, (as to) the powers to grant licenses, renew them, impose conditions and the like; those powers don’t rest with the High Court. 

Of course, the High Court can issue orders, but it can’t actually tell the Liquor Licensing Board exactly what to do and it can’t actually issue a liquor licence, even if it wants to.

All of these things have to be taken into account when pursuing a judicial review of a decision of the Municipal Services Appeals Board. 

You have to ask yourself, what am I going to get? What will happen next? Because essentially, even if the High Court says that the Municipal Services Appeals Board has done it wrong, or has failed under the tests of judicial review; it will send the matter back to the Municipal Services Appeals Board to do it again and do it right this time.

That can be quite time-consuming, it can be quite complex, and it results in another Municipal Services Appeals Board hearing; which may or may not go the way an applicant hopes anyway.

It may be done correctly (this time around) but there’s a possibility that the decision ends up the same because if under a judicial review structure, the reasoning and the processes adopted, for example by the appeals body, were found to have been flawed; they’re simply told to get it right. 

That’s not a decision on the merits of the case. 

Anybody considering judicial review of a Municipal Services Appeals Board decision needs to pay really careful attention to what’s been happening and also think ahead of how, if they’re asking for another hearing before the Municipal Services Appeals Board, they are going to succeed before that Appeals Board, and get what they want; which they didn’t get earlier. 

Otherwise the idea of going to judicial review and simply asserting that things were done wrongly if the actual result of the appeal can be defended by the Municipal Services Appeals Board if reached properly, there’s always a risk that whilst the judicial review is successful, the second visit to the matter on the part of the Appeals Board itself does not result in a very different decision, or not a significantly different decision, than the one that was earlier made. That has happened in the past. 

Judicial review is very complex and carries with it costs implications, it’s an expensive process and there is a possibility that the government would seek costs against an unsuccessful applicant for judicial review, of course, on the other hand, if one prevails there’s a possibility of getting your costs of the judicial review back. 

Unlike the Municipal Services Appeals Board, and the Liquor Licensing Board which are, I would say traditionally no costs forums where one can fight without worrying about adverse financial implications of the other side, these considerations do kick in, for judicial review, and I strongly suggest that it’s very much a matter of people to consider, with their legal teams, in great detail, before embarking upon anything like this in the liquor licensing field at least.