ATTORNEY GENERAL v. KWOK KAN HSING

No. 882 of 1987
(Criminal)

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HEADNOTE

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Hawking – meaning of ‘trades’ – one sale not necessarily trading.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL. NO. 882 OF 1987

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J U D G M E N T

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1. This is a case stated by Mr. Morrow, Magistrate, at North Kowloon, on the application of the appellant.

2. The respondent was charged with hawking flowers without a. licence, contrary to regulations made under S. 83A of the Public Health and Municipal Services Ordinance, Cap. 132.

3. It was proved that at about 2 p.m. on 11th March the respondent was sitting on a stool in the back of his goods vehicle, which was parked outside 4-8 Yuen Ngai Street, near Flower Market Road. The sideboard was lowered; in a horizontal position, on which were four pails containing flowers and cardboard boxes of flowers. The scene is shown in the photographic exhibits. The respondent sold one bunch of those flowers to a passer-by for $25. He did not have a licence.

4. The respondent gave evidence. He said he owned a flower shop directly across from the truck. He and an assistant had loaded the flowers onto the vehicle and intended to deliver them to two customers. He was waiting for the driver and was about to pack the flowers from the pails into boxes. He admitted that passers-by had stopped to admire the flowers but denied that he had made a sale.

5. The magistrate did not believe this part of his evidence, but thought he might have told the truth when he said he intended to sell the flowers elsewhere. Not being satisfied that the respondent intended to sell or expose the flowers for sale at that place, he dismissed the charge.

6. The questions for the opinion of this court are:-

"(1) Whether I erred in law in holding that the word 'trades' in the definition of 'hawker' connotes an intention to engage in some continuing enterprise, and therefore a person who had no prior intention to sell or expose his goods for sale but makes a single sale is not a 'hawker'?

(2) Whether I was wrong in law in dismissing the charge when I found that the respondent did make a sale in a public place without a licence."

7. S. 2 of the ordinance defines a hawker as 'any person who trades in any public place (inter alia) by selling or exposing for sale any goods, wares or merchandise.'

8. 'Trade' is not expressly defined. Its meaning is discussed in Halsbury Vol. 47 at p. 8, where the learned author states:-

"'trade' in its primary meaning is the exchange of goods for goods or goods for money, and in a secondary meaning it is any business carried on with a view to profit, whether manual or mercantile, as distinguished from the liberal arts or learned professions and from agriculture. However, the word is of very general application, and must always be considered in the context in which it is used. As used in various revenue Acts, "trade" is not limited to buying and selling, but may include manufacture. In the expression '''restraint of trade" the word is used in its loosest sense to cover every kind of trade, business, profession or occupation."

9. The authorities cited do not deal with the specific point raised by the learned magistrate.

10. In Ransom v. Higgs[1], a tax case, Lord Wilberforce said at p. 964:-

"Trade cannot be precisely defined, but certain characteristics can be identified which trade normally has. Equally some indicia can be found which prevent a profit from being regarded as the profit of a trade. Sometimes the question whether an activity is to be found to be a trade becomes a matter of degree, of frequency, of organisation, even of intention, and in such cases it is for the fact finding body to decide on the evidence whether a line is passed."

11. In Lee Hon v. R.[2] the point at issue was whether the appellant was a 'hawker' when he himself remained in private premises but the goods for sale were in the street. Following Smith v. Hughes[3], the Court of Appeal held that he was a hawker and dismissed the appeal. McMullin, J. said at p. 473:-

"In the present case it is conceded that a principal purpose of the legislation controlling hawking is the elimination of nuisance and obstructions on the public thoroughfare. From the statement of facts it appears that among the customers of the appellant were persons who were passing in the street and who, in purchasing his wares, would necessarily pause to inspect them and to pay for them."

12. Counsel for the appellant asks what the position would be where the appellant's first customer buys his whole stock. He submits that it would defeat the object of the legislation to hold that that was not trade.

13. One must have regard to all the circumstances in a case of this kind. I do not think it would be right to say that any sale is necessarily 'trading'. On the other hand it may be persuasive evidence of trading where there is other evidence to indicate that this was not a single, casual transaction that is unlikely to be repeated.

14. The photographs amount to such evidence. Even if the appellant's evidence that he intended to sell the goods elsewhere is true, it is obvious that, when the photographs were taken, which was shortly before the $25 sale, he was exposing flowers for sale. This indeed is the most common way in which flowers in 'Flower Market Road' are sold. Such exposure, coupled with the solitary sale, amounted to 'trading' within the meaning of the section.

15. It is not possible to answer the first question as it is framed. The answer to the second question is in the affirmative. No further order is sought but this opinion should be remitted for the magistrate's information.