KWOK CHEUK KIN v. DIRECTOR OF FOOD AND ENVIRONMENTAL HYGIENE

CACV 71/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 71 OF 2015

(ON APPEAL FROM HCAL NO. 27 OF 2014)

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J U D G M E N T

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Hon Cheung JA :

I. Introduction

1.  Death is often a taboo subject in many communities including Hong Kong.  It is traditionally associated with illness, decay and fear of the unknown.  Inevitably legislation is required to regulate the activities and to deal with the practical consequence arising from death.  This is necessary not only from the point of view of hygiene in handling decaying bodies but also from the wider social context on the perception of death.  For example, regulations are required on where and how dead bodies are to be handled, the veneration of the dead before disposal and their ultimate disposal so as to ensure public health and to reduce disturbance and alarm to the living because of such activities.  In Hong Kong, legislations have been enacted to address such subject matters as the undertaker service, mortuaries, funeral parlours, burial and cremation.  This can be found in the many subsidiary legislations enacted under the Public Health and Municipal Services Ordinance (Cap. 132) (‘the principal ordinance’).

II.  Funeral Parlours Regulation

2.1  The relevant legislation for consideration in this case is the Funeral Parlours Regulation (‘FPR’) (Cap 132AD) which requires the business of funeral parlours to be regulated by licence. 

1)  Cheung Chau Rural Committee  

2.2  The FPR comes into focus because the issue in the judicial review proceeding below is whether the Cheung Chau Rural Committee (‘the Rural Committee’) has been conducting a funeral parlour business on the island of Cheung Chau which, although being an outlying island, is in close proximity to Hong Kong and Kowloon.  For many years since the 1970’s, the Rural Committee has allowed residents of Cheung Chau who have lived on the island for more than ten years, to hold condolence services for the dead on a piece of land there known as the Pavilion.  It is on unleased government land and consists of a hut and an outdoor space.  The hut is made of concrete and metal walls, roof and a metal gate.  The outdoor area is enclosed by temporary bamboo scaffolding.  Coffins (which are hermetically sealed) containing embalmed bodies are brought in by undertakers and placed there, sometimes overnight, for condolence services held by families of the dead person.  That is the sole purpose of the Pavilion.  While no fixed charges are imposed for the holding of the service, the Rural Committee expects the families to give a donation in the sum of $1,100 ($900 prior to 2013) for the holding of the service.  The Pavilion is located next to residential buildings. 

2.3  The applicant, who is a resident of Cheung Chau, had complained to the Director of Food and Environmental Hygiene (‘the Director’) that the Rural Committee has been conducting unlicensed funeral parlour services and requested the Director to take action.  The Director disagreed and the applicant commenced judicial review compelling the Director to take action. 

2.4  Au J found for the applicant.  However, at the request of the Director, which was agreed to by the applicant, the Judge did not impose a mandamus on the Director but left to the Director to decide whether enforcement actions should be taken against the Rural Committee.  The Director now appeals.

2)   Reception, storage or treatment of human remains

2.5  There are seven licensed funeral parlours in the whole of Hong Kong.  Under the FPR, funeral parlour means a mortuary other than the exceptions listed in section 3 such as mortuary in public hospitals.  The meaning of mortuary is found in the definition provision of section 2 of the principal ordinance, namely ‘any premises or place set apart or habitually used for the reception, storage or treatment of human remains’.

2.6  The phrase ‘reception, storage or treatment’ of human remains are plain words and on any reading, these three activities are not conjunctive in nature in their natural and general meaning.  However, the modern principle for the construction of legislation requires one to consider the natural and general meaning of the words of a statute in their proper context with regard to the purpose of the legislation : HKSAR v Cheung Kwun Yin (2009) 12 HKCFAR 568 and Fully Profit (Asia) Ltd v Secretary for Justice (2013) 16 HKCFAR 351.

2.7  The context of the FPR is, in the view of the Director, in the realm of ensuring public health and hygiene.  Her position is that the words ‘reception and storage’ mean ‘reception and storage for the purpose of the treatment of human remains’.  Mr Abraham Chan, counsel for the Director, argued that such a reading is not by way of adding words to the legislation, but, rather reading the words ‘reception or storage’ in their proper context. He referred to section 8 which deals with embalming dead bodies and section 7 which mandates a special room being set aside in the premises of the funeral parlour for the purpose of embalming bodies.  He also referred to other provisions such as dead body in an advanced state of decomposition must be encoffined in a hermetically sealed coffin when received into the funeral parlour (section 9); notification by funeral parlour of receipt of the body of person who died from quarantinable disease (section 10); the use of protective gloves and clothing for embalmment (section 11) and maintaining the premises of a funeral parlour in a sanitary condition (section 12).

2.8  Even considering the context of public health and hygiene, I do not agree that one should read the words in such a restrictive way.  In practice, many instances of embalmment are, of course, carried out in funeral parlours.  But it is not the only function that the funeral parlours perform.  Before the embalmment, the funeral parlours will have to receive the body, hence reception.  And before or after the body is embalmed, it has to be stored, hence storage, either for the purpose of conducting condolence service there or elsewhere or for the purpose of burial or cremation.  It is unimaginable that the reception or storage of human remains will come within the ambit of the regulated activities of a funeral parlour only if the reception or storage is solely for the purpose of treating the human remains.  Put it in another way, the regulated activities of a funeral parlour cannot be confined solely to that of treatment of human remains.  To read the FPR in this manner will actually render the words ‘reception’ or ‘storage’ meaningless, since reception or storage will inevitably be required before or after treatment of the dead body.  The present case highlights this reading.  The point is best addressed by asking these questions.  Is the Pavilion not used for the reception and storage of human remains?  Are there not public health and social issues involved for these activities?  The answer must be an obvious yes and subject to the additional statutory requirements which I will address, these activities must come under the regulated activity of a funeral parlour.  In my view, where virtually every aspect of the disposal of the dead has been regulated, it really is straining the principle of construction to argue that FPR is intended to operate in such a restrictive manner. 

2.9  The provisions relating to embalmment under sections 7 and 8 do not mean that the absence of a room setting aside for embalmment and the activity of embalmment itself in a funeral parlour will not turn what is otherwise a funeral parlour into a non-funeral parlour.  Rather, these sections are catered for the situation where embalmment is intended or is to be performed in the premises of a funeral parlour.  The other provisions relied upon by Mr Chan do not really advance the Director’s argument further.

2.10  Mr Chan had argued that adopting such a wide definition would mean many churches, which conduct memorial services for the dead with their coffins being brought into the church premises, will be caught by the FPR for conducting unlicensed funeral parlour business.  The licencee of such a business is required to display a ‘Funeral Parlour’ sign prominently as mandated by the FPR.  Mr Chan argued that it is unimaginable that a church will be required to display this sign. 

2.11  The statutory definition of a funeral parlour includes the words ‘any premises or place set apart or habitually used’ for such activities.  Whether a church, which is habitually used for worship, is to be regarded as being habitually used for the reception of the dead is debateable.  In any event, if, for policy consideration, such churches should be exempted from the definition of funeral parlour, then it is a matter for the Government to consider.

2.12  Mr Chan also relied on the principle against penalisation for doubtful provisions in the light of the sanction of imprisonment and fine for operating unlicensed funeral parlours.  The principle is well established :T v Commissioner of Police (2014) 17 HKCFAR 593 and Bennion on Statutory Interpretation (6^th edn), section 271, p.749.  But I really do not see any doubt on the statutory meaning of reception and storage.

2.13  Mr Chan also argued that to construe the words ‘reception’ or ‘storage’ so widely may infringe the fundamental rights of religious freedom guaranteed by the Basic Law and Bill of Rights : Leung Kwok Hung & others v HKSAR (2005) 8 HKCFAR 229.  Mr Chan clarified that this is not advanced by way of constitutional challenge to the FPR but in support of his argument that the Judge had failed to give proper effect to the presumption against interpretations which tend to limit the enjoyment of such fundamental rights and freedoms : R v Secretary of State for the Home Department, Ex p. Simms & Anor [2000] 2 AC 115 - p.130D-F (Lord Steyn) & 131F (Lord Hoffmann) on principle/presumption of statutory legality and legislative intent to comply with fundamental rights; A v Commissioner of Independent Commission Against Corruption (2012) 15 HKCFAR 362 - paragraphs 28-29 which affirmed Ex p. Simms; HKSAR v Lam Kwong Wai & Anor (2006) 9 HKCFAR 574 - paragraph 71 and paragraphs 78-79 which addressed judicial obligation to adopt remedial interpretation where needed to ensure statute is Basic Law or Bill of Rights consistent and Bennion on Statutory Interpretation (6^th edn) at p 753.  Even in such a narrow context, I really do not see how freedom of religion is being infringed.  The licensing requirement does not in any way infringe religious freedom.  In any event, applying the proportionality test, this must tilt against the interpretation urged upon by Mr Chan.

2.14  Mr Chan has advanced other arguments, but this is really a short point on interpretation and no further elaboration will shed light on the scope of the definition. 

3)   The ‘business’ of funeral parlour

2.15  Section 4(1) of the FPR provides that :

‘ (1) Save under and in accordance with a licence granted by the Director, no person shall carry on the business of a funeral parlour.’

2.16  In respect of the term ‘business’, both parties accept that there is no requirement for any profit element to be involved with the activities.  The Judge referred to the meaning of business in this way :

‘ 48. The meaning of “business” is not defined in the Regulation or the PHMSO [the principal ordinance]. The ordinary use of it has a fairly broad and elastic meaning, the precise shape of which depends on the immediate context. It has been held in a relevant context that it has a more extensive signification than the meaning of “trade”: Chan Yung Sing v Choi Chung Ching (unreported, HCA 4830/2002, 30 May 2003, Recorder A Ho SC) at paragraph 36, citing Harris v Amery (1865) LR 1 CP 148 at 151 per Willis J, and Rolls v Miller (1884) 27 ChD 71 at 77 per Pearson J. Lindley LJ in Rolls v Miller, supra, at 88 also observed that the meaning of the word “business” meant “almost anything which is an occupation, as distinguished from a pleasure – anything which is an occupation or duty which requires attention is a business…” ’

2.17  There is no challenge to the Judge’s view.

2.18  In respect of section 4(1) the Judge has further defined the meaning of the business of a funeral parlour as :

‘54(2) The meaning of “carry on the business of a funeral parlour” under s 4(1) of the Regulation includes one where the person doing that have some direct and active participation in the management and/or operation of a funeral parlour as a premises (with or without the making or the intention to make profit out of that).’

2.19  He has also repeated this definition in the second paragraph of the orders he made.

2.20  Mr Chan argued that the ‘business’ element of section 4(1) should be confined to direct and active participation in activities characterising a place as a funeral parlour at the level of ultimate managerial and operational control.

2.21  I do not see the purpose or value of giving elaborate definition to the term business under section 4(1).  The term ‘carrying on the business’ of funeral parlour simply means ‘operating the business of funeral parlour’.  The elaborate definition contained in the judgment below and urged upon us by Mr Chan seem to me to be only relevant when it comes to a determination, in enforcement proceedings for the unlicensed activities, as to which individual or entity is responsible for such unregulated activities.  However, in view of the agreement of the parties below on the form of the relief and in the absence of any challenge by the applicant, I will say no more on this point.

III.  Conclusion

3.  The Judge was clearly correct in his decision.  Accordingly the appeal is dismissed.

IV.  Costs

4.  As the Director has failed in this appeal, there will be a costs order nisi that the Director is to pay the applicant the costs of this appeal.  The applicant’s own costs are to be taxed according to the Legal Aid Regulations.

Hon Kwan JA :

5.  I agree with the judgment of Cheung JA.

Hon Poon JA :

6.  I agree with the judgment of Cheung JA.  I would add a few words of my own to deal with Mr Chan’s concern that under the construction of “funeral parlour” favoured by Au J, many churches, which conduct memorial services for the dead with their coffins being brought into the church premises, will be caught by the FPR for conducting unlicensed funeral parlour business.

7.  With respect, I think Mr Chan is over-worrying.  A “funeral parlour” means a “mortuary” : section 3 of the FPR.  Under section 2(1) of the principal ordinance, “mortuary” means “any premises or place set apart or habitually used for the reception, storage or treatment of human remains”.  The words “set apart” and “habitually used” denote permanency, regularity or frequent occurrence in the usage of the premises in question for the reception, storage and treatment of human remains.  But a church usually holds memorial services for the dead with their coffins in the church premises on an ad hoc and irregular basis.  Unless on the facts, such memorial services are held so regularly or frequently that it renders the church premises having been “set apart” or “habitually used” for receiving human remains, the chance that such church premises is a “funeral parlour” within the meaning of the FPR is extremely remote.