THE QUEEN v. TRIVIEW LIMITED

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1176 OF 1995

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J U D G M E N T

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1. This was an appeal against a conviction for operating or managing a hotel without there being in force a Certificate of Exemption issued under Section 6 or a licence issued under s.8 of the Hotel and Guesthouse Accommodation Ordinance, Cap.349.

2. On 1st September 1990, the Hotel and Guesthouse Accommodation Ordinance was enacted and required all existing hotels to apply for a Certificate of Exemption. The Appellants, Triview Limited, owner of Hong Kong Parkview Club & Suite, applied for a Certificate of Exemption on 16th August 1991. A Certificate of Exemption was issued and that expired on 31st August 1992. The exemption was renewed for a period of one year until 31st August 1993. Thereafter, the Appellants were required to apply for a licence under s.8 of the Ordinance. This, they refused to do.

3. It is important to note that the two exemptions had been applied for by the Appellants without prejudice to the Appellants' right to contend that they were not running a hotel. There was some correspondence between the Appellant and the Licensing Authority, and in November 1994, following advice from the Attorney General's Chambers, Mr Stephenson, an Assistant Director with the Home Affairs Department, at the behest of the Licensing Authority, conducted an undercover operation which involved him booking and occupying a room at Parkview for two days. He telephoned on the morning of 25th November and took occupancy of the room that same evening. He was allocated Room No.819. When he checked in he was advised by Parkview that they had no single suites available so they gave him a double-suite at no extra cost. He was also asked to sign a check-in form which included this statement :-

"Tenancy of Hong Kong Parkview Suites is subject to the Terms and Conditions as set out in the Tenancy Agreement/Rental Offer and this Registration Form. Signing this Registration Form signifies that you have accepted the said Terms and Conditions. The said TENANCY AGREEMENT/RENTAL OFFER Hong Kong Parkview apartments has been signed by your company.

Any extensions or renewals of this tenancy is subject to the Terms and Conditions of the Rental Offer and this or a revised Registration Form (which will set out the revised term and rental)."

Mr Stephenson occupied Room 819 and his evidence was, in effect, that he enjoyed facilities which would normally be provided by a first class hotel.

4. The definition of "hotel" which is the same as the definition for "guesthouse" is given in s.2 of the Hotel and Guesthouse Accommodation Ordinance, Cap.349, and is as follows :-

" 'Hotel' and 'guesthouse' mean any premises whose occupier, proprietor or tenant holds out that, to the extent of his available accommodation, he will provide sleeping accommodation for any person presenting himself who appears able and willing to pay a reasonable sum for the services and facilities provided and is in a fit state to be received ...."

It is certainly true that the Appellants provided sleeping accommodation for Mr Stephenson, and there was no denial by the Appellants that they held themselves out as providing such. The trial and indeed the appeal turned on the meaning of the words "for any person presenting himself".

5. There was no evidence before the Court of any instance of the Appellants providing sleeping accommodation to anyone who simply walked in off the street. Indeed, there was evidence before the Court of an internal memorandum to all staff members of the Appellants that accommodation was not to be provided to anyone who came in off the street.

6. It is submitted by Mr Harris, who appeared for the Appellants on the appeal, that the words "to any person presenting himself" are surplusage, unless they are intended to distinguish hotel accommodation from any other sleeping accommodation. He submitted that the words are included because the Ordinance is regulating what traditionally were referred to as "inns". He submitted that at common law, an "inn" provided accommodation for persons who arrived seeking it, rather than persons who had a previous arrangement for accommodation for a fixed period. He referred me to Halsbury's Laws of England, 4th ed., Vol.24, #1105, note 7, Parker v. Flint (1699) 12 Mod. Rep. 254. There it is stated that the definition of "hotel" in the Hotel Proprietors Act 1956 excludes establishments which fall outside the definition of a common law inn. This, he submitted, is not surprising, because the Act has to draw a distinction between establishments which provide conventional hotel accommodation, and lodgings or self-contained apartments, otherwise its ambit would extend to the latter. He submitted that it could not have been the intention of the legislature for the Ordinance to apply to all sleeping accommodation, otherwise it would extend to most forms of lettings of residential accommodation. He submitted, therefore, that as the evidence does not show that Triview would accept any person presenting himself and seeking accommodation or who arrived seeking accommodation, then the premises cannot be described as an hotel.

7. Mr Reading, for the Crown, submitted that a person presenting himself could be a person either with or without a prior booking.

8. I was persuaded by the Appellants' arguments as it seemed to me quite clear that the definition contained in the Ordinance described what we know as a conventional hotel operation. That would include the holding out that the accommodation, if vacant, was available to anyone who presented himself with or without prior booking, and who was able to pay for that accommodation. If it is not proved that an establishment provided such a service, then such an establishment would not fall within the definition of an hotel.

9. There was no evidence before the learned Magistrate that Triview accepted guests in that way. Therefore, the learned Magistrate was wrong to find that Triview were operating an hotel. This appeal is allowed.