HKSAR v. WONG GIM FUK

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 333 OF 1998

_______________

________________

________________

J U D G M E N T

________________

1. The Appellant appeals against conviction in the Magistracy on one offence of suffering to be carried on a food business beyond the confines of the food premises as delineated on the approved plan. This is contrary to By-laws 35C and 36(1)(a) of the Food Business (Urban Council) By-laws Cap. 312.

2. The incident complained of as reported by the Health Inspector, PW1, showed workers from the restaurant using a makeshift table that had been put up by the restaurant to serve what appeared to be lunch boxes which were closed, packed in a plastic bag and handed over outside the restaurant to a customer. The packing was of a fairly minor nature: there was only one incident observed by the Health Inspector.

3. The case was argued at length before the Magistrate and the same grounds were argued on appeal. These were that the Magistrate erred in finding that the facts disclosed the operation of a food business outside the area of licenced premises because any such activity was clearly restricted to the operation of a take-away service to customers. Further it was argued that the Magistrate had failed to direct himself properly on the defence submission that as only a single transaction was observed, there was no evidence of a pattern of behaviour or a system which put the Appellant in breach of the licence a single breach being insufficient to establish such breach.

4. I am satisfied having read the Magistrate's comprehensive Statement of Findings that the Magistrate not only had both those matters in his mind but that he correctly decided this case by rejecting those submissions and convicting the Appellant. There are no grounds for my interfering with his decision and this appeal is dismissed.