Nelson v Yiu [2003] NZLLA 7 (9 January 2003)

Last Updated: 14 February 2010

Decision No. PH 007/2003 –
PH 008/2003

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by SZE KI SAMANTHA IVY YIU pursuant to s.123 of the Act for renewal of a General Manager’s Certificate

AND

IN THE MATTER of an application pursuant to s.135 of the Act for cancellation of General Manager’s Certificate number GM 007/1780/01 issued to SZE KI SAMANTHA IVY YIU

BETWEEN NIGEL STUART ROBERT NELSON

(Police Officer of Auckland)

Applicant

AND SZE KI SAMANTHA IVY YIU

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at AUCKLAND on 13 December 2002

APPEARANCES

No appearance by or on behalf of the respondent
Senior Sergeant M J Lopdell – New Zealand Police – applicant and in opposition to
renewal application
Mr G S Whittle – Auckland District Licensing Agency Inspector – to assist and in
opposition to renewal application

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority are two applications. The first application is by Sze Ki Samantha Ivy Yiu for the renewal of her General Manager’s Certificate. This certificate was first granted on 11 July 2001. It follows therefore that the application for renewal follows the twelve month probationary period in which the conduct of the manager is subject to scrutiny. Of all renewals, the first is probably the most important.

[2] The second application is brought pursuant to s.135 of the Act. It is for the cancellation of the General Manager’s Certificate issued to Ms Yiu. The grounds for the application are that:

(a) The manager has failed to conduct the licensed premises in a proper manner, and

(b) The conduct of the manager as such is to show that she is not a suitable person to hold the certificate

[3] It will be noted that Ms Yiu has not appeared either to support her application for the renewal of her manager’s certificate, or to answer the allegations contained in the cancellation application.

[4] The evidence we have heard shows that Ms Yiu first came to the attention of the Police on 6 June 2001, shortly before she obtained her manager’s certificate. A notice was sent pursuant to s.130 of the Act confirming her appointment as a temporary manager for premises at 70 Albert Street, Auckland City, known as "The Hungry Bear". The form was signed in Asian handwriting, and the name beside the signature was shown to be Tsuguhiro Takado. Constable Nelson interviewed Mr Takado who told the Constable that he had not signed the form. The form indicated that the certified manager who was being replaced by Ms Yiu, had suddenly resigned from her position. That statement turned out to have been untrue. The certified manager had not worked at the premises for about two years, and was no longer in New Zealand. There was no proof that Ms Yiu was part of this fraudulent notification, but there are certainly grounds for concern.

[5] At any event, Constable Nelson discovered that new operators had obtained a lease of the premises at 70 Albert Street, Auckland City, and were trading without a liquor licence or a temporary authority. On the 20 July 2001, shortly after Ms Yiu was granted her General Manager’s Certificate, a search warrant was executed at "The Hungry Bear". Ms Yiu was working as the manager of the premises. Indeed she sold liquor to Constable Scott Lyall Taylor who was there in plain clothes. As a consequence of the sale of liquor without a licence, the company and a company director, and one other person were prosecuted in the Auckland District Court. They pleaded guilty to the charges. One of the defendants received a discharge without conviction. Although she was the manager at the time of the illegal sale, Ms Yiu was not prosecuted. She claims that she did not know that the licence was held by the previous licensee. She was given the benefit of the doubt on that occasion.

[6] On 7 January 2002, approximately 6 months later, a further notification form was received by the Police pursuant to s.130 of the Act. That form confirmed that Ms Yiu had been appointed as the manager of premises known as “Perfections”. These were licensed premises. The licence had been issued to “Perfections”. The licence however, was for a massage parlour. The licence conditions required that liquor could be sold only on such days and during such hours as facilities were provided for massage to any person who was present on the premises. In other words, the sale of liquor was associated closely with the supply of massage services.

[7] When the notification of Ms Yiu’s appointment was received, the premises had changed it’s name to “Fat Boys Slim Sports Bar.” Constable Nelson made a routine licensing check of the premises there days later. He was eventually able to locate the liquor licence. He noted that there were some staff members present and one person consuming liquor. Ms Yiu’s name was displayed as the duty manager. Constable Nelson discovered that there was no duly appointed manager under the Massage Parlour’s Act 1978. Furthermore there were no masseuses on the premises available to facilitate massaging of patrons. Clearly the sale of liquor at that time was in breach of the conditions of the licence. Furthermore the Constable found that the rooms normally used for massage were no longer set up for that purpose. Each room had been remodelled and contained chairs, a table and a television and karaoke equipment. There were no massage rooms at all on the premises.

[8] Although Ms Yiu said that the girls were due to start at 10.30 that night, and that liquor was being sold to a customer who was waiting, it is probable that in view of the lack of facilities, the explanations given by Ms Yiu were untruthful.

[9] Ms Yiu was asked about the licence. She said that she knew that girls should be available when liquor was being sold. The Constable eventually became aware that the premises had been re-let, and that the new owners were trading illegally on the “Perfections” licence. He accordingly applied for the cancellation of that licence, and it was duly surrendered to the Authority.

[10] During January 2002, the Constable also became aware of the premises situated in 28 Fort Street, Auckland City. These premises were known as “Club Xanadu”. However, it seems that once again, new owners had taken over, and called the premises “Club Heat”. The temporary authority for the premises had expired. On the 14 February 2002 a search warrant was executed on those premises. Ms Yiu was present. Constable Samuel Vincent Rice and one other Constable had visited the premises in plain clothes earlier. They had purchased beer from Ms Yiu and paid a cover charge. Ms Yiu was spoken to. Her answers indicated that she knew that the temporary authority had expired. She also stated during the course of the interview, that she was not intending to renew her manager’s certificate, although at the time she said she was not working as the manager. As a consequence of the illegal sale of liquor, proceedings were brought in the District Court for unlawful selling of liquor against Ms Yiu, and against the company, and against the company directors. At the present time, a warrant has been issued for those defendants in lieu of summons. If Ms Yiu had appeared at the hearing today, the warrant would have been executed.

[11] In terms of s.135 of the Act, we are more than satisfied that the ground that the manager has failed to conduct any licence premises in a proper manner, has been established. In particular, we are more than satisfied that Ms Yiu’s conduct has been such as to show that she is not a suitable person to hold a certificate. In view of the evidence we have received, it is more than desirable to make an order, cancelling her certificate.

[12] The criteria for the renewal of the manager’s certificate are contained in s.126 of the Act. In light of the evidence, which we have received, her character and reputation have been brought into question. The Police have submitted that at the age of 22, she has fronted for unlicensed Asian groups over the twelve month probationary period of her certificate. While she has no convictions recorded against her at this time, that maybe because the summons has not been able to be served. The manner in which she has managed the sale and supply of liquor pursuant to a licence, has not necessarily shown to involve an increase in liquor abuse. Nevertheless, there is no question that if people can trade without bothering to obtain licences, then there will inevitably be liquor abuse.

[13] As the Senior Sergeant pointed out, there is no evidence that the applicant has ever worked for, or under the supervision of, a legitimate licensee during the 12 month probationary period of her certificate. On the contrary, there is evidence that she has worked on three licensed premises where there has been no valid licence. On one of those premises, the validity of the licence was affected by the fact that it was not trading as a licensed massage parlour, but as a karaoke bar. For the reasons that we have given, we make the following orders.

[14] We order that General Manager’s Certificate number GM 007/1780/01 issued to Sze Ki Samantha Ivy Yiu is hereby cancelled. By the application of logic, the application for renewal of the same certificate will be refused.

DATED at WELLINGTON this 9th day of January 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

Yiu.doc(rk)