Armstrong v Hahn [2003] NZLLA 388 (30 May 2003)

New Zealand Liquor Licensing Authority

[Index] [Search] [Download] [Help]

---

Armstrong v Hahn [2003] NZLLA 388 (30 May 2003)

Last Updated: 4 April 2010

Decision No. PH 388/2003

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application pursuant to s.132 of the Act for cancellation of on-licence number 60/ON/200/2001 issued to IL-DONG HAHN in respect of premises situated at 192 Manchester Street, Christchurch known as “Woori Restaurant”

BETWEEN JOHN FRANCIS ARMSTRONG
(Police Officer of Christchurch)

Applicant

AND IL-DONG HAHN

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Mr J C Crookston

HEARING at Christchurch on 12 May 2003

APPEARANCES

Mr J B Taylor – agent for respondent
Sergeant J F Armstrong – NZ Police – applicant
Mr M Ferguson – Christchurch District Licensing Agency Inspector – to assist

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] Before the Authority is an application to cancel an on-licence issued to Mr IL-Dong Hahn. The application is brought by the Police pursuant to s.132 of the Act. The licensed premises to which the application relates, is a small Korean café/restaurant situated at 192 Manchester Street in Christchurch. The café/restaurant is known as “Woori Restaurant”.

[2] The ground for the application is that the conduct of the licensee is such as to show that Mr Hahn is not a suitable person to hold the licence.

[3] The allegations to support the application are that:

(a) At the time of the original licence application, Mr Hahn was in New Zealand on a visitor’s permit. The Agency was advised that he intended to apply for a business permit. The application has never been completed.

(b) Mr Hahn and his wife are currently regarded by the Immigration Department as overstayers. Removal orders have been issued and served on them.

(c) Mr Hahn does not speak English well, and has relied on his son Myong Woo (Peter) Hahn, in dealing with various authorities and agencies. The son was convicted in the Christchurch District Court on 27 November 2002 of forgery, and has since left the country. He was in New Zealand on a student visa.

[4] The respondent does not dispute the facts. He and his wife intend to leave the country, although this is subject to a final legal challenge to the High Court. Mr Hahn, through his agent Mr J B Taylor, seeks time to pursue a review of the Minister of Immigration’s latest decision. Alternatively the respondent seeks time to enable him to sell the business as a going concern.

The Background Facts

[5] On 5 December 2001, the Christchurch District Licensing Agency issued an on-licence to Mr IL-Dong Hahn for the “Woori Restaurant” at 192 Manchester Street, Christchurch. The hours of operation were from 7.00 am to 1.00 am the following day. Consumption of liquor was allowed only when the premises were being operated as a restaurant.

[6] Mr IL-Dong Hahn is unable to speak English without an interpreter. He is a South Korean national having been born on 8 April 1944. He first came to New Zealand in December 1996 to visit his son Myung Woo Hahn, who was studying at a secondary school in Christchurch. Myung Woo Hahn is known as Peter. Mr Hahn subsequently made regular visits to New Zealand. His last arrival was on 28 October 2000. He did not renew his visitor’s permit at that time, and accordingly, he officially became an overstayer on 17 December 2001.

[7] In the meantime, with the assistance of his son Peter, he set up a Korean restaurant in Manchester Street, Christchurch. Mr Hahn was successful in obtaining a BYO licence to complement the restaurant. He then obtained the current on-licence. It seems that Peter, who could speak English, conducted all the negotiations and carried out all the transactions. It was Peter who was nominated to be the manager of the proposed licensed premises. Peter advised the District Licensing Agency that he was about to obtain a General Manager’s Certificate. He never did so. Furthermore, no appointment of a manager was ever notified to the authorities as required by s.130 of the Act.

[8] According to Mr Hahn, the trust which he placed in his son was misplaced. To his regret, Peter has been shown to be quite unreliable if not manipulative. Peter was supposed to handle his father’s and mother’s applications for residency. According to Mr Hahn, Peter advised him that the visitor’s permits had been renewed, when in fact, this had not been done. He also advised that an application had been lodged for a long term business permit. This had not been done either. It was alleged by the respondent, that Peter had mishandled the money entrusted to him for the purpose of obtaining the necessary permits.

[9] Matters came to a head when Peter Hahn was convicted of forgery in the Christchurch District Court on 27 November 2002. Up until that time he had been running the restaurant on his own as the manager, although he had no qualifications. Mr Hahn occasionally checked the restaurant to see if everything was going well. When he found out about the forgery, Mr Hahn dismissed his son as the manager. Peter Hahn has since returned to Korea.

[10] Mr Hahn continued to run the restaurant, even though he had no idea of the intricacies of the Act. He certainly did not know about the requirement to have the holder of a General Manager’s Certificate present at all times when liquor was being sold. When he gave evidence through an interpreter, he did not appear to know what a General Manager’s Certificate was.

[11] For some time he used the services of a Chinese national who was described as a “trade manager” to help him run the restaurant. That person ceased employment ten days before the hearing. Mr Hahn said that he believed that this person was qualified to run the restaurant, but there was no evidence that this was the case, and no notice was filed of any managerial appointment.

[12] Both Mr and Mrs Hahn have been served with removal orders. When Mr Hahn received his order in September 2002, he assured the Immigration Officer that he had business interests in China, and that he would make a voluntary departure from New Zealand. He has not done so. He has on two occasions, with assistance from his Immigration Consultant, appealed to the Minister of Immigration for the removal orders against him and his wife, to be withdrawn. Both appeals have been declined by the Minister. In the last decision, the Minister said:

“I have considered the material you have enclosed, but I am not persuaded to reverse my decision of 21 November 2002. It is now time for your clients to heed my advice for them to leave New Zealand before their immigration circumstances deteriorate further.”

[13] It is the Immigration Service’s intention to remove Mr Hahn from New Zealand at the first available opportunity. However, Mr Hahn has now instructed the law firm of Parry Field to apply for judicial review of the Minister’s decision. We received confirmation of this in a letter dated 12 May 2003. Mr J B Taylor is a consultant with J & N Immigration Services. He advised us that it was expected that the application would be filed with the High Court on 13 May 2003.

[14] Mr Hahn advised that the restaurant was on the market for sale, but only on a confidential basis. He had a person from Auckland who was interested. He believed that if the business retained its on-licence, he would receive greater value for it. The problem he faces is whether to continue to hope that an application for judicial review will be successful, or start making final arrangements for his departure. He advised that on average he sold $100 worth of liquor a week, and most of that was “Soju”.

[15] Mr Young Jin Sohn gave evidence. He is a Korean Presbyterian Minister without a church. He recently became aware of Mr Hahn’s desperate situation and offered to help. He was prepared to be appointed as a temporary manager, and apply for a General Manager’s Certificate in order to help. However, he has had no experience in managing any premises in respect of which a licence was in force.

[16] When he gave evidence, Sergeant J F Armstrong based his case on Mr Hahn’s immigration status. He was asked whether there were any other specific licensing problems. He then expressed his concerns about the employment of unqualified managers. Sergeant Armstrong confirmed our impression of the restaurant that it appeared to be well appointed. It could well be providing a service to the community.

[17] At the conclusion of the case, we sought from Mr Taylor written confirmation that the application for judicial review had been filed with the High Court. We also required confirmation that the provisions of the Act in relation to the employment of a manager were to be attended to as a matter of urgency. We gave no assurance that either of these matters would necessarily affect our decision. The letter was to be filed within seven days.

[18] On 16 May last, we received a fax from Mr Taylor. It confirmed that an application for the High Court review of the Associate Minister’s decision had been filed. The case will be called on 14 July next for a timetabling conference. It seems clear that no further action will be taken for Mr Hahn’s removal pending the outcome of the application. We received no documentation in respect of Mrs Hahn.

[19] In relation to the managerial situation, Mr Taylor reported as follows:

“Mr IL Dong Hahn advises that he has this matter under action; currently he advises that he is unable to find a Korean speaking certified manager: in the interim he advises that he has stopped selling alcoholic beverages and further advises that Mr Sohn, as identified to the Court at the hearing is applying for certification. Mr Hahn will employ a Korean speaking Certified Manager in the interim if one is available and will notify your Authority. Mr Sohn advises that he expects to complete his certification in the near future and will advise your Authority accordingly; if he is successful he will be available to Mr Hahn. Please find attached Mr Sohn’s statement of fees due as evidence that he has registered for the course Managing the Sale and Supply of Liquor; running date, 21 May 2003.”

Conclusion

[20] In this case, the evidence of unsuitability is overwhelming. Not only has Mr Hahn been found to be an overstayer, he is unable to speak English, he has very little understanding of the responsibilities which go with a licence, and there have been no certified managers present or notified since the licence was issued. Furthermore, on the evidence which we heard, it was clear that he had given assurances which he had not kept. We gained the impression that he was not really making arrangements to leave, but adopting any tactic which might enable him to stay.

[21] On the other hand, there have been no liquor abuse issues. A view of the restaurant shows clearly that it is providing a service to the city. Because of the language difficulties, and the lack of any sound management, there is an obvious potential for an increase in the abuse of liquor. However, with sales of $100 a week, we believe that on balance, abuse of liquor is an unlikely consequence of the continued operation of the business.

[22] On 1 April 2000 s.115(1) of the Act came into being. That section provided as follows:

“At all times when liquor is being sold or supplied to the public on any licensed premises a manager must be on duty and responsible for compliance with this Act and the conditions of the licence.”

[23] The amendment represented a major shift in emphasis on management of licensed premises. The responsibility for the lawful operation of any licensed premises, was placed on the shoulders of trained and experienced managers. The fact that this restaurant has traded for nearly 18 months without a certificated manager cannot be ignored. The fact that Mr Hahn is an overstayer is a major aggravating feature. We accept that he has lodged a review. However, our understanding is that the application does not seek to change his status, but rather to persuade the authorities not to enforce the removal order.

[24] In exercising our discretion under s.132(6) of the Act, we believe that it is desirable to make an order in this case. If no sanction was imposed, we could be seen to be encouraging other licensees to disregard the Act. It should be emphasised that the cancellation of the on-licence does not mean that the restaurant must close. Furthermore, any purchaser will know that the business meets the requirements for a liquor licence. So long as any new applicant is suitable, and has a duly qualified manager, the grant of a new licence should be a formality.

[25] Nevertheless because of the fact that Mr Hahn has ceased to sell liquor we are prepared to give him a month to dispose of the business. In such case any purchaser would be able to take advantage of trading with a temporary authority.

[26] For the reasons we have given, on-licence 60/ON/200/2001 issued to IL-Dong Hahn will be cancelled one month from the date of this decision.

DATED at WELLINGTON this 30th day of May 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

Woori.doc(nl)