HKSAR v. YIU LIN TAI

1997, NO. MA 148

TRANSLATION

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

Magistracy Appeal

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(On Appeal from STS 5647, 5650 and 5653 of 1996)

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J U D G M E N T

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1. The appellant, Madam Yiu Lin Tai, was convicted after trial on three summonses for carrying on food business without a licence. She now appeals against conviction.

2. The only witness of this case was a health inspector. She went to a shop called 'Sin Chik Ngam' for inspection on several occasions around 20th December, 1995. It was at shop no.249, New Town Plaza, Shatin. On her first visit there on 20th December, 95, the said health inspector was greeted by a waitress. According to the health inspector, there were a bar, two zinc basins and two ice-makers in the shop. The health inspector also pointed out that the shop was selling Taiwanese beverage called 'Pearl Tea'. She asked the waitress to produce the relevant restaurant licence but she failed to produce one. At that time, the waitress replied, "the application is being processed but (we) haven't got it yet." Later, the inspector asked for the Business Registration. It was not disputed that Madam Yiu was one of the partners at the material time according to the Business Registration.

3. The same health inspector inspected the shop again on two occasions afterwards, one on 24th January, 96, and one on 6th March, 96. The relevant Business Registration was checked on both occasions but the health inspector never mentioned any business acts at all on her second or third visit nor was there any evidence showing that the shop had been selling any food or beverage. Prosecutor for the HKSAR fairly admitted that the second and third summons were basically unsupported by any evidence. For the second and third summons, obviously, it is improper for the trial magistrate to convict. The relevant conviction must therefore be quashed.

4. With regard to the first summons, the Court had to take into consideration two points. Firstly, whether the 'Pearl Tea' sold at the material time was Chinese herb tea or not. The law concerned states that "restaurant" means any food business which involves the sale of meals or unbottled non-alcoholic drinks other than Chinese herb tea, for consumption on the premises. In other words, if the shop in question was selling Chinese herb tea, it did not need a restaurant licence; even if it was selling other drinks, it would not need a licence unless the drinks were for consumption on the premises. On these two points, the Court had to consider whether 'Pearl Tea' was a Chinese herb tea or not. Besides, even if 'Pearl Tea' was not a Chinese herb tea, the Court would have to consider whether the beverage was for consumption on the premises.

5. In the evidence of the health inspector, there was no mention of the 'Pearl Tea' being a takeaway or being consumed in the shop. Without evidence in this aspect, the prosecution failed to establish that the shop in question fell within the definition of "Restaurant" as described in law. On the issue of Taiwanese 'Pearl Tea' being a Chinese herb tea or not, Mr Wong for the HKSAR government submitted that first of all the Court could take judicial notice to decide ; however, if a conviction is based on judicial notice, it should be clearly stated in the statement of findings but, the trial magistrate failed to do so. As to the burden of proof, in this case, I do not think that I need to consider further in details nor do I intend to find out whether the onus is on the appellant to prove the 'Pearl Tea' in question is in fact Chinese herb tea.

6. It is held that solely on the point that there was no evidence to show the 'Pearl Tea' sold was for consumption in the shop in question, there is sufficient ground to hold that the conviction against the appellant is unsafe. Therefore, the conviction in respect of the first summons must be quashed as well. The application for leave to appeal on all the summonses is granted, appeal is allowed, conviction is quashed, fine is to be returned to appellant.