HONG KONG RACING PIGEON ASSOCIATION LTD. v. ATTORNEY GENERAL and Another

Civil Appeal No. 158 of 1994

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H E A D N O T E

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Construction of statutory definition. Reference to legislative history. Application of Pepper v Hart.

IN THE COURT OF APPEAL

1994, No. 158
(Civil)

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J U D G M E N T

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Nazareth, V.-P.:

1. The Waste Disposal Ordinance (Cap. 354) was enacted in 1980 to provide for the collection and disposal of waste. The interpretation section, s. 2, provided in sub-s.(1):

"(1) In this Ordinance, unless the context otherwise requires -

...

'livestock' means pigs or poultry; ...

'poultry' means chickens, ducks, geese, pigeons and quail;"

In 1987, a new Part IIIA was enacted, and brought into operation in June 1988. Section 15(1), in that Part, provided that:

"No person (other than an exempt person) shall keep livestock in or on any premises in a livestock waste prohibition area ..."

Livestock prohibition areas are specified in the First Schedule and largely comprise urban areas. Exempt persons are specified in the Fourth Schedule. The Governor in Council is empowered to amend the Schedules.

2. The plaintiff claims to be the only organisation in Hong Kong promoting the hobby or sport of racing pigeons. It has about 380 members of whom 120 are active members who keep racing pigeons and enter races.

3. It is said that there are three main types of domestic pigeons: racing pigeons; fancy pigeons kept as pets and for show; and pigeons kept as poultry. Racing pigeons are easily distinguished. They are smaller in size, compact and weigh only about 14 ounces whereas fully grown pigeons kept as poultry can easily weight up to 1 kilogram. Fancy pigeons usually have fancy tails and so forth.

4. The hobby of racing pigeons is taken very seriously. The birds fly home from distances of over 1,000 km. They are subject to all sorts of hazards in doing so and losses can go up to 80 or 90% or even more for international events. The plaintiff claims that it is imperative for active members to keep at least 30 to 40 birds if they are to take the sport or hobby seriously. The respondents have made no serious attempts to dispute that.

5. It is also an expensive sport or hobby. Pedigree birds cost up to HK$20,000 each and their eggs approximately HK$1,000 each. They are usually kept in lofts which are brightly lit, draught-proof, waterproof and vermin proof. The lofts are usually set in tiers in which nest boxes for roosting and breeding are placed. They are spacious enough for keepers to walk in for cleaning out, checking the health of birds and so forth.

6. Shortly after the new Part IIIA came into operation in June 1988 many members of the plaintiff were visited by officers of the Environment Protection Department and warned that they should not keep more than 10 pigeons or they would be prosecuted. That limit of 10 birds arose from item 7 of the Fourth Schedule which listed as an exempt person:

"Any person who owns or keeps in or on his premises in any livestock waste prohibition area not more than 10 poultry."

The limit has recently been increased to 20. It is not necessary to detail the representations that were thereafter made by the plaintiff to the Government and the associated negotiations. The present position is that there are prosecutions pending against members of the plaintiff. The plaintiff is of the view that poultry and therefore livestock do not include racing pigeons. On 6th October 1993 it took out an originating summons seeking a declaration that "all racing pigeons kept by all the members of the plaintiff are not 'pigeons' for the purposes of the Waste Disposal Ordinance". The matter came before Sears J on 15th July 1994. He found against the plaintiff and refused the declaration sought. From that decision, the plaintiff now appeals to this Court.

7. Counsel who appeared for the plaintiff below relied upon the dictum of Denning L.J. (as he then was) in Seaford Court Estates v Asher [1949] 2 KB 481 at 499 that:

" ... when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give 'force and life' to the intention of the legislature."

Sears J referred to that dictum in his judgment and then went on to say:

"The problem which faces the court, however, is other legislation in Hong Kong which utilizes the same definition. In the Public Health (Animals and Birds) Ordinance, Cap.139, there are restrictions from public health points of view on animals and birds. Birds are defined as meaning 'poultry and all other birds', and poultry is defined as including 'domestic fowls, turkeys, ducks, pigeons and geese'. This is a different category of poultry to that found in the Waste Disposal Ordinance, but the word 'pigeon' is used. In my judgment, insofar as public health matters are concerned, which are important provisions, e.g. where disease is discovered and there is restriction on the import of birds, or the movement of birds in affected areas, I can see no reason to restrict the definition of the word 'poultry' as excluding racing pigeon. In those circumstances, it seems to me that I would have to give the same interpretation in the Waste Disposal Ordinance to the meaning of poultry".

The judge then went on, apparently primarily upon that basis, to conclude that "the word 'pigeon' included in the word 'poultry' means all categories of pigeons" and that he was "not permitted to remove from that definition a specific category of pigeon". He declined to make the declaration sought.

8. Mr Hui Ka-ho, for the plaintiff/appellant, who did not appear below, as his first ground of appeal challenges the judge's reason. Ms Linda Shine, for the respondents, does not seek to support it but contends that the judge's conclusion can be supported upon other grounds. I do not find it necessary to say more than this, that the two definitions cannot be said to be in pari materia and that therefore the parallel drawn by the judge cannot be right. I must confess to some difficulty in conceiving of a situation where a definition in another Ordinance (particularly one that does not have the same objectives) can be of assistance save perhaps in the most residual and attenuated way.

9. Turning then to Mr Hui's substantive arguments, he relies upon the following meaning of "poultry" given at p.241 of Vol.XII of the 2nd Edition of the Oxford English Dictionary:

"3. Domestic fowls collectively; those tame birds which are commonly reared for their flesh, eggs, or feathers, and kept in a yard or similar inclosure, as barndoor fowls, ducks, geese, turkeys, guinea-fowls (excluding pigeons, pheasants, etc.); sometimes restricted to the barndoor fowl with its varieties; ..."

Ms Shine does not dissent. Mr Hui emphasises the qualitative criterion in that definition, i.e. of being table birds; also that pigeons are not poultry by definition. I would digress in the latter regard to say that given the extent to which pigeons are consumed in Hong Kong, which was commented upon in argument before us, pigeons may well be poultry here.

10. Be that as it may, returning to Mr Hui's argument, he submits that "pigeons" should be construed in the light of that qualitative criterion in the meaning of poultry. The legislature, he contends, would not have taken the trouble of first defining livestock and then defining poultry to include "pigeons" had "pigeons" to be read in the wider sense of that expression. There would be no need to introduce "poultry"; the legislature could simply have defined "livestock" as meaning "pigs, pigeons, chickens, ducks, geese and quail". I cannot say that I am persuaded. The ordinary and natural meaning of "pigeons" is, in the present context, clear, and it extends to all pigeons, be they table birds, fancy or show birds, or even racing pigeons. That such meaning must be given, is, if anything, reinforced by the word "means" and the context of an interpretation or definition section. "When as here, a statute lays down the definition of a word or phrase in plain English, it is rarely necessary and often unwise for the judge to improve or redefine the definition" (per Salmon L.J. in R v Calder and Boyars, Ltd [1968] 3 All ER 644 at 647J).

11. For completeness, I mention the following points made by counsel and some of the considerations they raise. It must be presumed that, in their peculiarly deliberate context, the definitions were inserted with the intention of achieving their obvious effect. First, that the definition of "livestock" was intended to restrict the ordinary meaning of that term to "pig"; but possibly at the same time allowing for the convenient legislative extension of that definition to include other animals. Likewise the definition of "poultry" can be seen to enlarge the ordinary meaning of that word to expressly include pigeons, which are not normally regarded as "poultry", and also to restrict that ordinary meaning by excluding "turkeys" and any other kind of poultry not mentioned. To proceed, while "pigs" and all the five types of birds included in the definition of "livestock" could have been included in the definition of "livestock", that would have tended to complicate the differentiation required in the legislation between "livestock" and "poultry", e.g. in the circumstances provided for in Schedule IV at least. Where then do considerations such as these lead to? Certainly not, in my view, to displacement of the perfectly plain meaning of "pigeon".

12. Mr Hui seeks to bolster his argument by reference to the debates in the Legislative Council in the process of enactment. In Pepper v Hart (H.L.(E)) [1992] 3 WLR 1032 at 1061 Lord Browne-Wilkinson, with whom Lord Mackay, Lord Keith, Lord Bridge, Lord Griffiths, Lord Ackner, and Lord Oliver all agreed, concluded that the former "exclusionary rule should be relaxed so as to permit reference to Parliamentary materials where (a) legislation is ambiguous or obscure, or leads to an absurdity; (b) the material relied upon consists of one or more statements by a minister or other promoter of the Bill together if necessary with such other Parliamentary material as is necessary to understand such statements and their effect; (c) the statements relied upon are clear."

13. It will be apparent from what I have already said that in the present context there is simply no ambiguity or obscurity in the definition of "poultry", or the meaning of "pigeon" or indeed in the Ordinance. I have not been able to discern any; nor has anything credible in that way been identified. As to absurdity, the respondents strenuously resist any suggestion of that. They point out that there is no other legislation that deals with the disposal of pigeon waste and they emphasise the flexible provision for exemption. If there is any case that the legislation leads to absurdity, the appellant in my view has not even begun to make it. Plainly the legislation does not lead to absurdity.

14. In the result, there is neither the need, nor the entitlement to resort to Parliamentary material under Pepper v Hart, or indeed to other aids in construction.

15. However that may be, the constraints their Lordships envisaged upon the relaxation of the exclusionary rule in respect of such material is of interest. Lord Bridge said this:

"It should, in my opinion, only be in the rare cases where the very issue of interpretation which the courts are called on to resolve has been addressed in Parliamentary debate and where the promoter of the legislation has made a clear statement directed to that very issue, that reference to Hansard should be permitted. Indeed, it is only in such cases that reference to Hansard is likely to be of any assistance to the courts." (At p.1039H)

Lord Oliver of Aylmerton at p.1042, having accepted the necessity for a limited relaxation of the previous exclusionary rule said:

"It is, however, important to stress the limits within which such a relaxation is permissible and which are set out in the speech of my noble and learned friend. It can apply only where the expression of the legislative intention is genuinely ambiguous or obscure or where a literal or prima facie construction leads to a manifest absurdity and where the difficulty can be resolved by a clear statement directed to the matter in issue. Ingenuity can sometimes suggest ambiguity or obscurity where none exists in fact, ..."

And Lord Browne-Wilkinson himself at p.1056B said this:

"... reference to Parliamentary material should be permitted as an aid to the construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity. Even in such cases references in court to Parliamentary material should only be permitted where such material clearly discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words. In the case of statements made in Parliament, as at present advised I cannot foresee that any statement other than the statement of the minister or other promoter of the Bill is likely to meet these criteria."

16. What then are the words here which it is suggested, are ambiguous or unclear? Simply the definition of "poultry", which I will not repeat, but which I will say again seems to me clear and not to disclose any ambiguity or obscurity. But I put that aside for the moment to see whether the legislative history of the legislation discloses any statements that are both authoritative, and that bear directly or sufficiently upon the "issue". What is in issue is whether "pigeons" includes pigeons which are not bred for the table, to use the convenient generalisation adopted.

17. I pause here to note that when the Ordinance was first enacted as Ordinance No.8 of 1980, its long title was "to provide for the collection and disposal of waste". Nothing has been drawn to our attention to suggest any narrowing of that broad scope. True the Ordinance even then contained the definitions of "livestock" and "poultry". In the following year the Waste Disposal (Amendment) Ordinance 1987 was enacted. It was this Ordinance that extended the long title of the original Ordinance in summary to the control and regulation of production and storage of waste and inter alia to matters incidental thereto. It also inserted the new Part IIIA, to deal with the control of livestock waste. It was in that context that the particular parts of legislative history that Mr Hui relies upon were made. In moving the second reading of the Bill, the Secretary for Health and Welfare stated that the purpose of the Bill was to amend the Ordinance to give effect to a 10-year livestock waste control programme. He pointed out that livestock waste was a major cause of pollution of streams and coastal waters. It was the Government's considered view that livestock farming was incompatible with urban development. Members of the Council asked for time to study the matter. They held meetings, including meetings with farmers' representatives. Their chairman reported that they were in full support of the principle that Hong Kong's environment should be protected and they agreed that those farmers who wished to continue livestock farming in controlled areas should be allowed to do so provided they met with effluent control standards.

18. That in substance comprises the legislative history upon which Mr Hui relied. As Ms Linda Shine for the respondents pointed out, while it would be natural for the focus to be upon the major problem, i.e. livestock waste produced in farming, that would not mean that other waste would not also remain within the scope of the legislation. The primary mischief addressed by the 1987 amendment was, I dare say, the pollution caused by livestock, particularly, pig waste. But plainly that did not remove other waste from the scope of the Ordinance, nor is there any indication that any such narrowing of the scope of the Ordinance was intended. In the result, the legislative history of the legislation would not in any event avail the plaintiff.

19. Mr Hui sought again to rely upon the exhortation of Denning L.J. in Seaford Court Estates LD v Asher to judges to supplement the written word so as to give force and life to the intention of the legislature, in the passage I have already quoted. But as Mr Hui did not seek to deny, that is to apply "when a defect appears". Here, I am not able to see any.

20. There remain two other matters to be addressed. First, Mr Hui's reliance upon the following passage of Lord Browne-Wilkinson's speech in Delaney v Staples [1992] 1 All ER 944 at 947C-D:

"The proper answer to this case turns on the special definition of 'wages' in s.7 of the Act. But it is important to approach such definition bearing in mind the normal meaning of that word."

Upon that he contends that likewise here "pigeon" in the definition of "poultry" must be construed bearing in mind the normal meaning of "poultry". However, it does not require a particularly careful reading of his speech to see that Lord Browne-Wilkinson was addressing the particular circumstances before him. The definition of "wages" in s.7 of the Act (which is reproduced at p.948) commences in this way:

"(1) In this Part 'wages', in relation to a worker, means any sums payable to the worker by his employer in connection with his employment, including ..."

Then follow various payments. As Lord Browne-Wilkinson pointed out at p.949b "The critical question is whether a payment in lieu falls within this wide definition as being a sum payable to an employee 'in connection with his employment'". In the particular circumstances I would with respect agree that there it was important to approach the definition of "wages" bearing in mind the natural meaning of the word. The latter was left in the reckoning by use of the words "sums payable to the worker by his employer in connection with his employment". I have no doubt that their Lordships would be greatly surprised if it were suggested to them that by the passage relied upon by Mr Hui, they were laying down some general principle that regardless of the wording of a definition, regard was to be had to the normal meaning of the word defined. Frequently, if not usually, definitions are intended to and do modify or displace normal meanings. Clearly the judgment does not avail the appellant.

21. Finally the appellant has, following the initial hearing before us, sought to pray in aid the House of Lords' decision in British Amusement Catering Trades Association v Westminster City Council(H.L.(E)) [1989] 1 AC 147. Mr Hui submitted that in declaring that "cinematograph exhibition" in the Cinematograph Act 1909 as amended does not include video games, their Lordships attached great weight to the original intention of the legislature to provide for the safety of audiences at film shows, and thus held that subsequent amendments that widened the application of the Act to all exhibitions of moving pictures (other than by simultaneous reception and exhibition), did not include video games. He contended that by analogy, the legislature here originally prohibited the farming of poultry in urban areas and that it is by that concept of poultry as table birds, that the court should be guided. I am not able to find in their Lordship's speeches any principle that avails Mr Hui, nor anything of assistance in that judgment which plainly turns upon its own facts.

22. I conclude therefore that the judge clearly was right in his construction of the definition, although I reach that conclusion by a different route. I would dismiss the appeal and order nisi that the respondents are to have their costs of the appeal.

Bokhary, J.A.:

23. I have considerable sympathy for the appellants. So, it is plain, did the judge who decided against them at first instance. And Mr Hui has certainly urged - ably if I may say so - every point which could be advanced on their behalf.

24. In particular, his argument by reference to the Oxford English Dictionary definition of "poultry" demanded anxious consideration.

25. At the end of the day, however, it seems to me that the use of the word "pigeon" in the statutory definition is, as my Lord's judgment has demonstrated, more than the appellants can overcome.

26. I agree that this appeal must be dismissed with an order nisi for costs to the respondents.

Liu, J.A.:

27. We are concerned with law regulating the keeping of pigeons and the disposal of the waste they make. The purpose for which they are bred cannot be relevant to the disposal of their waste.

28. I, too, would dismiss this appeal for the reasons given by my Lord, the Vice President. I agree with all his reasons and the order nisi as to costs he proposes to make.