HKSAR v. MODIC ENTERTAINMENT (HK) COMPANY LIMITED 澳滌娛樂(香港)有限公司

FAMC No. 32 of 2025

[2026] HKCFA 15

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 32 OF 2025 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 422 OF 2023)

___________________________

___________________________

___________________________________

REASONS FOR DETERMINATION

___________________________________

Mr Justice Ribeiro Ag CJ:

1.  We dismissed this leave application at the hearing and now supply the reasons.

2.  The applicant operated premises containing two roller skating rinks as a commercial venture, charging admission for customers who wished to use them and also offering coaching in roller skating for a fee. It was convicted of doing so without a licence contrary to section 92A of the Public Health and Municipal Services Ordinance.[1]

3.  Section 92A(1) provides: “No person shall conduct or open or keep open any place for the purpose of any activity specified in the Eleventh Schedule except under and in accordance with a licence issued by the Authority ...”.  The Eleventh Schedule specifies: “Public skating rink”.  Section 2 of the Ordinance defines “public skating rink (公眾溜冰場)” to mean “any place opened, kept or used for the purpose of skating to which the public are admitted with or without payment for admission...”

4.  Leave to appeal against conviction was sought on two grounds: First, that it is reasonably arguable that on section 92A’s true construction, roller skating rinks – as opposed to ice-skating rinks – do not require licences (Question 1).  Secondly, that in any event, licensing is only required for public skating rinks and these were not “public” rinks since certain conditions had to be met before persons were permitted to use them (Question 2).

5.  The suggestion in Question 1 that the licensing requirement under section 92A only covers ice skating and not roller skating rinks is not reasonably arguable on the basis of the English text.  The relevant provisions apply to a “public skating rink” which plainly covers any kind of public skating rink, including roller and ice skating rinks.  And the definition in section 2 refers to “any place opened [etc] for the purpose of skating”, again embracing all forms of skating.  The statutory language affords no basis for excluding roller skating rinks from the licensing requirement.

6.  The applicant’s argument relies on the Chinese text in which the licensing requirement regarding “public skating rinks” applies to “公眾溜冰場” (gūng jung làuh bīng chèuhng).  At the hearing, Mr Jeffrey Tam[2] sought to argue that since a phrase which specifically refers to roller skating, namely “滾軸溜冰” (gwán juhk làuh bīng) was not used, the provisions are inapplicable to roller skating as opposed to ice skating rinks.

7.  That argument is unsustainable.  As a matter of common usage in Hong Kong, the phrase “溜冰場”, is understood to mean skating rinks in general and, like the English term “skating rink”, is apt to encompass any kind of skating rink.  The statutory intent is to regulate all skating rinks generally.  An exclusion of roller skating rinks from that general class is baseless.

8.  While in the applicant’s skeleton argument, there is some suggestion that the licensing requirement applies only to ice skating rinks because the Chinese text “溜冰場” (làuh bīng chèuhng) includes the character “冰” (bīng) – literally meaning “ice” – that suggestion was understandably disclaimed by Mr Tam, given the aforesaid common usage.

9.  Thus, in section 92A no difference is intended between the Chinese and English texts.  This accords with section 10B(2) of the Interpretation and General Clauses Ordinance[3] which provides: “The provisions of an Ordinance are presumed to have the same meaning in each authentic text.”

10.  Nor is there any purposive basis for suggesting that the legislation intends a distinction to be drawn between them.  The objectives of public safety and public order underlying the licensing requirement apply equally to roller skating and ice skating rinks. 

11.  As to Question 2, the applicant seeks to argue that the premises were not a place to which the public were admitted because only persons who filled in disclaimer forms, signed waivers, made payment or enrolled as students were admitted, with staff exercising the right to refuse access.

12.  That is again untenable.  The authorities make it clear that whether a place is public or private is a matter of fact and degree.[4] The fact that members of the public must satisfy certain conditions before they are admitted to the premises does not suffice to deprive those premises of their public character.  As section 3 of the Interpretation and General Clauses Ordinance states, “public ... includes any class of the public”.  Persons who satisfy the conditions imposed may constitute a relevant “class of the public”.

13.  Thus, in Glynn v Simmonds,[5] Lord Goddard CJ stated:

“A place does not cease to be a place of public resort because the public have to pay to go there. An exhibition is obviously a place of public resort. The Zoological Gardens are, no doubt, a place of public resort because the public are invited to go there, and they enter the gardens on payment of a sum of money. So is a racecourse – not an open course like Newmarket, Brighton or Ascot, but a course in a park. They are all places of public resort because the owners or occupier invite the public to go there, but it is said that because a person who has been warned off, or any other undesirable character, will not be allowed into Tattersalls or into a racecourse, that prevents it from being a place of public resort. It must be to some extent a question of degree, but I cannot see that property to which the owner invites the public to resort becomes any the less a place of public resort because he refuses to allow a particular individual or individuals to enter.”

14.  To take another example, as Fok PJ noted in The Jockey Club Kau Sai Chau Public Golf Course Limited v HKSAR,[6] the requirement of having a particular golf handicap before being allowed to play on the relevant golf courses does not mean that qualifying golfers “enter for any purposes other than ... in their capacity as members of the public.  They are not there to exercise their rights or privileges as a member of a private club.”

15.  In Director of Public Prosecutions v Vivier,[7] Simon Brown J (as his Lordship then was), dealing with arguments concerning screening out requirements, suggested a useful approach:

“... in these screening cases one must ask: do those admitted pass through the screening process for a reason, or on account of some characteristic, personal to themselves? Or are they in truth merely members of the public who are being admitted as such and processed simply so as to make them subject to payment and whatever other conditions the landowner chooses to impose.”

16.  The courts below[8] cannot be faulted for finding that, notwithstanding the (rather minimal) requirements laid down for granting access to the rinks, the premises remained a “place opened, kept or used for the purpose of skating to which the public are admitted with or without payment for admission”.  The contrary is not reasonably arguable.