HKSAR v. FAN CHUN HUNG

HCMA984/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 984 OF 2006

(ON APPEAL FROM FLCC 76 OF 2006)

_______________

_______________

_______________

J U D G M E N T

_______________

1.  This is an appeal against conviction for an offence of operating a clubhouse without a Certificate of Exemption or Compliance contrary to section 4(1) of the Clubs Safety of Premises Ordinance, Cap.376. 

2.  On 9 November of last year, police officers went to premises in Fanling - which are shown in the photographs - upon the door of which was a sign saying “Fanling Leisure Club”.  Inside the premises, they found 10 people and two tables of mahjong set up for people to play around.  The Defendant said that he was the person in charge of the premises, that he rented them for $2,500, presumably a month, and he showed a Certificate of Registration of the society and the particulars of its members.  He was arrested and cautioned and made admissions that he was operating the club.

3.  He gave evidence before the magistrate on both the special and the general issues.  On the general issue he said that he was not the manager or someone in charge of the club; he was an ordinary member only and he had not rented the premises and he believed that the licences required by the law had been obtained because he was told that by the club’s chairman.  He called a witness who supported his assertion that he was merely an ordinary member and not involved in the management of the club and the witness claimed that it was she who rented the premises.

4.  The magistrate disbelieved the evidence of the Defendant on both the special and general issues.  No point arises in this appeal today upon that judgment made by the magistrate.

5.  Two points are taken.  One is that this was not a club as defined by the Ordinance and, secondly, that the whole section 4 of the Ordinance was unconstitutional and should be struck down.  Let me deal with the points in order.  ‘A club’ is defined in section 2 of the Ordinance and it means:  “Any corporation or association of persons formed for the purpose of affording its members facilities for social intercourse or recreation and which (a) provides services for its members, whether or not for the purposes of gain, and (b) has a clubhouse of which only its members and their accompanied guests have a right to use.” 

6.  It was not disputed that there was a clubhouse of which only its members and their accompanied guests had a right to use.  The argument was that there was insufficient evidence to establish that the club provided services for its members.  What one can see, either from photographs or from what was said at the trial below, is that the clubhouse was very basic, but one can see that there is an air-conditioner there; two fans; table and chairs; there were boxes containing mahjong tiles; there was something that looks like you could drink from on a table; there was a lavatory with running water and other evidence established that it was the Defendant who opened up the premises in the morning and that he provided water, I believe hot water, for people who wanted it.  I say “he provided” - it was available, let me put it like that.  The magistrate dealt with it on the basis that it was all these services that made it possible to play mahjong in there. 

7.  The argument today, comes down to this, that the word “services” should be construed in a way that would not include the matters that I have mentioned and that these are rightly described as facilities and that the Ordinance requires something beyond facilities to be ‘services’.

8.  In my judgment, those matters I have mentioned are rightly described as services.  Further, it is a misreading of the definition section to say that services have to be something beyond facilities.  The word ‘facilities’ appears in the definition in relation to the purpose for which the club was formed.  The evidence here clearly established that this club provided facilities for social intercourse and recreation, such as the playing of mahjong.  That is why it was formed.

9.  A separate question then arises in order to fulfil the definition of whether or not, having been formed to provide those facilities, the club then further provided services.  There is no reason to think that the services and the facilities they had in mind to provide have to be two different things.  Even though the services provided were very basic here, they were nonetheless services.  Accordingly, in my judgment, the first ground fails. 

10.  Let me turn to the second ground.  Section 4 reads:

4	(1)	Any person who on any occasion operates, keeps, manages or otherwise has control of a club-house in respect of which neither of the conditions indicated in subsection (2) has been satisfied commits an offence and is liable on conviction to a fine of $200000 and to imprisonment for 2 years and to a fine of $20000 for each day during which the offence continues.
	(2)	The conditions referred to in subsection (1) are-
		(a)	that a certificate of exemption has been issued under section 5(2)(b) in respect of the club-house and is for the time being in force; or
		(b)	that a certificate of compliance has been issued under section 5(2)(a) in respect of the club-house and is for the time being in force.
	(3)	It shall not be a defence that a person charged with an offence under subsection (1) did not know that neither of the conditions indicated in subsection (2) had been satisfied.

11.  The argument advanced by the Appellant is that subsection (3) converts what would have been, without it, a strict liability offence into an absolute offence and that, since the section provides for up to 2 years’ imprisonment, that would offend what I will loosely call our human rights legislation and the whole section should therefore be struck down. 

12.  Mr Tibbo has argued that the effect of subsection (3) has to be that it excludes the operation of any common law offence, otherwise, he says, why have it there?  It is common ground that if section 4 had been limited to its first two subsections, it would have been an offence of strict liability, and the argument is that the addition of subsection (3) has to have more effect then merely acknowledging that knowledge need not be proved. 

13.  In written submissions from the Respondent to the appeal, a distinction is made between a lack of knowledge on the one hand and an active belief in certain facts on the other.  One of the Respondent’s answers to the challenge is this, that if a person charged with an offence under section 4 were to say, for good reason, for instance, “I was duped by the previous operator who produced a good forgery of a certificate” in circumstances where there was nothing to put the person charged on notice, in those circumstances, a reasonable belief in those facts, it is argued, would be a defence available. 

14.  I think there is force in that argument but, happily, it is not an argument I have to resolve today because I will presume, for the purposes of argument, that the effect of subsection (3) is as contended for by the Appellant.  I will also presume for the purposes of argument that if this is an absolute offence, it would be offensive and amenable to being struck down because it contains a provision for 2 years’ imprisonment. 

15.  So on the assumptions that I have made that the Appellant is right, what is the effect?  The effect really, in my judgment, would be that subsection (3) would have to go and it would leave the first two subsections in place.  That would be a way to meet the alleged mischief that would be consistent with the approach of the Hong Kong courts and consistent, in my view, with common sense.  So even if I were to take that course as urged by the Appellant, would it help the Appellant in this appeal?  The answer to that is no, it would not save him. 

16.  Mr Tibbo urges me, very nicely, to strike down the whole section.  He claims that would be the proper - that is his word - the ‘proper’ approach.  He said the legislature should redraft it all.  It is with considerable industry that he has pursued this point and the fact that I do not deal with his references to Hansard, similar legislation with different or analogous provisions, should not be taken to diminish his argument.  But in the end, his argument really comes down to a mere assertion that striking down the whole section would be the proper course.  As I have said, that is not one which I am minded to follow for the reasons I have given.

17.  Accordingly, the section stays alive sufficiently, whatever view one takes of the law here, to convict the Appellant.  His defence was one of fact which was rejected.  Accordingly, the appeal against conviction is dismissed.