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HCMA000326/1991
IN THE SUPREME COURT OF HONG KONG
(Appellate Jurisdiction)
MAGISTRACY APPEAL NO. 326 OF 1991
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BETWEEN
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CHENG CHUN YEE |
Respondent |
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AND
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THE ATTORNEY GENERAL |
Appellant |
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Coram: Hon. Bewley, J. in Court
Date of hearing: 17 May 1991
Date of delivery of judgment: 17 May 1991
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JUDGMENT
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1. This is an appeal by the Attorney General, by way of case stated, from a decision by Mr H.H. Tam at Shatin Magistrates Court.
2. The information alleged that : -
"on the 14th day of August 1990, contrary to by-law 34(a) of the Food Business (Regional Council) By-laws, Chapter 132, the Respondent, being the licensee of a restaurant situated at the premises known as ground floor, Shop C, Greenfield Court, Shatin Wai Road, Shatin, New Territories, which licence was last renewed on the 27th day of June 1990, without the written permission of the council, did permit an addition in respect of the premises in relation to which the licence was granted - namely, additional seating accommodation occupying an area of about 9 square metres on the public pavement in front of the said premises, which resulted in deviation from the plan approved under by-law 32 of the Food Business (Regional Council) By-laws, Chapter 132."
3. The prosecution evidence was inter alia :
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"
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(a) |
The restaurant at ground floor, Shop C, Greenfield Court, Shatin Wai Road, Shatin, New Territories was a licensed restaurant.
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(b) |
The respondent was the licensee of that restaurant.
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(c) |
On 14th August 1990 at 8:00 p.m. three tables and fourteen chairs were placed on the pavement outside the restaurant.
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(d) |
Twelve people were sitting at the three tables. They were having food there.
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(e) |
A woman was carrying food from the restaurant to supply to the people sitting outside the restaurant. They were having steamed goose, sausages, squid, congee.
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(f) |
There was a canvas canopy over the tables.
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(g) |
The tables and chairs in question were not within the approved plan of the restaurant, but were a pedestrain walkway away from the restaurant."
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4. On these facts the magistrate held that there was no case for the (unrepresented) respondent to answer on the grounds that :
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(a) |
The licence was granted under By-law 32 of the Food Business (Regional Council) By-laws, Chapter 132.
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(b) |
It required that the whole of the food premises to which the licence related be included in the plan.
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(c) |
By-law 34(a) was limited to the particulars in the plan;
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(d)
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The things were placed on a pedestrian walkway "away" from the plan;
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(e)
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They could not be said to have caused an alteration to the plan. |
5. The question of law posed by the magistrate is whether he erred in holding that the application of By-law 34(a) was limited to the premises included in the approved plan.
6. Regulation 34(a) provides :
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Restriction on alteration of premises or fittings after grant of licence |
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After the grant or renewal of any licence under these bylaws, except with the written permission of the Council, no licensee shall, in respect of the premises in relation to which such licence was granted, cause or permit -
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(a) |
any alteration or addition which would result in deviation from the plan approved under bylaw 32.
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(b) |
...
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(c) |
... |
7. Restaurant is defined by Regulation 32(2) of the Food Business (Urban Council) By-laws as :
"restaurant" means any food business which involves the sale of meals or unbottled non-alcoholic drinks other than Chinese herb tea, for consumption on the premises, ....."
8. Having regard to the fact that the declared purpose of the ordinance is to make provision for public health, the magistrate's narrow interpretation of Reg. 34(a) of the Regional Council by-laws is startling to say the least.
9. If the by-law did not apply to an extension of the business on or from which the food business was carried out, the licensee could avoid control by the licensing authority.
10. It is, with respect, clearly the intention of the legislation that the business should only be carried on within the confines of the approved plan. That gives the authority control in vital matters affecting health such as plumbing, ventilation etc.
11. To put the matter the other way around and say that, because the licensee had expanded his business beyond the plan, he is thereby outside the operation of the by-law, is contrary to good sense and the plain meaning of the legislation.
12. The answer to the question posed is yes, the appeal is allowed and the case remitted to the magistrate with a direction that there is a case to answer on the evidence led by the prosecution.
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(E. de B. Bewley)
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Judge of the High Court
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Representation:
Mr D.G. Saw, Crown Counsel, for Appellant.
Respondent in person.
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