R. v.CHAN WING HANG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.302 OF 1996

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J U D G M E N T

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1. The Appellant was charged with selling liquor without a licence, contrary to s.17(3B) and s.46(1) of the Dutiable Commodities Ordinance, Cap.109. There was a trial in which the Appellant did not give evidence. He was convicted and fined HK$7,500.

2. The premises where the sale of liquor without licence was alleged to have taken place was the mezzanine floor of the Walled City Pub in Kowloon City. The ground floor of this Pub was licensed premises whereas the mezzanine floor was not. The prosecution evidence against the Appellant mainly came from the customers on the mezzanine floor. PW1 said that on arrival on the mezzanine floor, staff of the Pub greeted him and he ordered Heineken beer. The staff would come up to the mezzanine floor now and again during his stay to enquire if he wanted anything more. He made a number of orders, as a result 8-10 bottles in all had been purchased by him. He paid around HK$300 and obtained a receipt for it. PW2 consumed beer on the mezzanine floor but the beer was bought on the ground floor. Both witnesses said they saw the Appellant on the mezzanine floor while they were there. PW3 a police inspector on routine inspection of licensed premises said when he arrived at the Pub, he was advised the person in charge of the Pub was on the mezzanine floor. He found on the mezzanine floor the Appellant who identified himself as the person in charge. He also found beer consumed on the mezzanine floor. PW4 another police officer said the Appellant identified himself as the manager. The Appellant admitted to both officers that there was no liquor licence in respect of the mezzanine floor.

3. The Appellant at the trial accepted that beer was found on the mezzanine floor at the time of the police inspection and there was no liquor licence in respect of the mezzanine floor. He also accepted that he was the manager of the Pub at the material time. However, he contended there was no evidence that he sold beer or he permitted beer to be sold on the mezzanine floor, he was not vicariously liable for what took place on the mezzanine floor.

4. The magistrate found the Appellant knew that sales of liquor by his staff had been and were taking place on the mezzanine floor of the Pub and he was therefore an accessory in those sales, in that as the manager of the premises, he should and could have stopped his staff selling the liquor at any time. He chose not to.

5. The magistrate also found that the Appellant was liable vicariously for the sales of liquor. He relied on s.46A of the Ordinance. The relevant part is as follows :

"(1) Where an offence against this Ordinance is committed by a servant of a licensee, the licensee shall, without prejudice to the liability of any other person, also be guilty of that offence but shall not be liable to any term of imprisonment."

6. In addition, the magistrate relied on Tesco Supermarket Ltd. v. Natrass (1971) 2 AER 127.

7. The Appellant now appealed against sentence. In grounds 1 and 2, the Appellant contended that there was no or insufficient evidence that the beer was sold by a member of the staff of the Pub. The 3rd ground is that the magistrate erred in relying on s.46A to find the Appellant vicariously liable for the acts of the staff of the Pub. Ground 4 is that the magistrate erred in finding the Appellant was liable as an accomplice by his mere presence on the mezzanine floor.

8. On the first two grounds, there was ample evidence for the magistrate to conclude that there was a sale of beer on the mezzanine floor of the Pub and the sale was by the staff of the Pub. The evidence of PW1 and the receipt for his payment for the drinks which the magistrate accepted was sufficient proof to that effect.

9. On the 3rd ground, s.46A is limited to the case where the offence is committed by a servant of the licensee. It cannot be relied upon to found guilt on the Appellant who was the manager of the premises. The Appellant was an employee of the club albeit a superior to the other members of staff in the Pub. There was no master and servant relationship between him and these other staff members.

10. The Crown now relied on s.40c of the Ordinance and submitted that the Appellant was vicariously liable. Section 40c provides for a presumption of employment. This was not relied upon by the Crown below. This issue was never dealt with by the Crown and the Appellant before the magistrate. In any case, the presumption deals with persons found on licensed premises which is not the premises in the present case. This presumption has no application here.

11. The Tesco case deals with liability of a company for the acts of its employees and it is not relevant here. The present case is concerned with the question whether the manager should be liable for the acts of its subordinate which is entirely different from that in the Tesco case.

12. The magistrate was incorrect to rely on both s.46A and the Tesco case to conclude that the Appellant was responsible for the sale of beer on the premises on the mezzanine floor without a licence.

13. In holding the Appellant was liable as an accomplice, the magistrate said :

"In a situation such as this, where the Appellant was present at the scene and had both the right and ability to control the principal, his failure to exercise that right of control made him liable as an accomplice ...... and more specifically, in that it is similar to the Appellant's case, Tuck v. Robson (1970) 1 WLR 741, as well as National Coal Board v. Gamble (1959) 1 QB 11 that 'mere passive acquiescence is sufficient only, I think, where the alleged aider and abettor has the power to control the offender and is actually present when the offence is committed'."

14. As to whether presence at a scene of crime would attract criminal liability, there are many authorities. Lord Parker C.J. in Tuck v. Robson (D.C.)(1970) 1 WLR 744 after referring to the passage in National Coal Board v. Gamble cited by the magistrate above, said :

" Moreover, quite apart from the question of control, it is quite clear that there may be circumstances in which mere presence is prima facie evidence of aiding and abetting. Devlin J. in National Coal Board v. Gamble cited R. v. Coney (1882) 28 QBD 534 ............. said, at p.24 : 'The judgments all refer to encouragement, but it would be wrong to conclude from that that proof of encouragement is necessary to every form of aiding and abetting'. I take the judge to mean there that proof of active encouragement is necessary in every form of aiding and abetting. He said :

'... presence on the scene of the crime without encouragement or assistance is no aid to the criminal, the supply of essential material is. Moreover, the decision makes it clear that encouragement can be inferred from mere presence.' "

15. The evidence accepted by the magistrate was that the Appellant was there on the mezzanine floor and he must have knowledge that beer was being supplied by his staff to the customers for more than one occasion in return for payment. He knew that sale of beer on the mezzanine floor was prohibited, there being no licence for such sale. Being the manager, the Appellant was in a position to control the staff. The presence of the Appellant in the position of the manager acquiescing in the prohibited sale by his subordinates was in every sense encouragement. The fact that PW1 did not know the Appellant was the person in charge is not important. The fact remains that the Appellant was present throughout the time on the mezzanine floor. In my judgment the magistrate was entitled to conclude that the Appellant participated in the offence of selling liquor without a licence and to convict the Appellant. The appeal against conviction is dismissed.