HKSAR v. CHOI YAN KIT

HCMA 132/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 132 OF 2008

(ON APPEAL FROM TWS 11638/2007)

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REASONS  FOR  JUDGMENT

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1.  The Appellant appeared before a magistrate sitting at Tsuen Wan Magistracy on 10^th January 2008 charged with one offence of operating a food business otherwise than at the place delineated in the plan without permission, contrary to sections 34C, 35(1)(a) and 35(3)(b) of the Food Business Regulation made under the Public Health and Municipal Services Ordinance Chapter 132 Laws of Hong Kong.  He pleaded not guilty to the charge, but was convicted after trial and fined $4,500.

2.  Perfected grounds of appeal against conviction were filed on behalf of the Appellant on 22^nd July 2008 which were firstly, that the Magistrate erred in drawing inferences that (i) the person seen taking food to the people seated outside the restaurant was a waiter employed by the Appellant’s restaurant; (ii) that the four people sitting outside the Appellant’s restaurant were customers of the restaurant; and (iii) that the two tables and eight chairs placed outside the restaurant belonged to the Appellant’s restaurant.

3.  The Second ground of appeal filed was simply that the said conviction is unsafe and unsatisfactory because the learned Magistrate erred in drawing the above inferences which were not the only reasonable inferences to be drawn from the facts proved.

4.  The appeal against conviction was argued before me by Mr. Oliver Davis counsel on behalf of the Appellant on 19^th September 2008; having heard submissions, I dismissed the appeal and indicated that I would hand down my reasons at a later date.  I now do so.

5.  Only one witness was called by the prosecution, that being a Health Inspector of the Food and Environmental Hygiene Department.  He gave evidence to say that on 5^th July 2007 at 12:25 am he arrived at the restaurant and found that it was still operating.  Further he discovered that outside of the confines of the restaurant, which was agreed by way of admitted facts, were placed two tables and eight chairs.  He also discovered tableware, food on the table and that four customers were eating.  He noticed a waiter coming out of the food room of the restaurant and put food on to one of the tables.  Soon afterwards one of those customers went inside the restaurant and paid the bill.  The witness took a photograph depicting the scene and this was produced as exhibit “P4”.

6.  The Appellant did not testify, nor did he call any witnesses on his behalf.

7.  The Magistrate in his statement of findings found PW1 the Health Inspector to be an honest and reliable witness and he accepted his evidence.  Despite the fact that exhibit P4 did not show the date when the photograph was taken, the learned Magistrate found that it was taken, as the witness had said, at the time, saying that he found no reason for the prosecution witness to have made up the date in order to falsely accuse the Appellant.  The Magistrate was entitled to make such findings.

8.  As a result of his findings, the learned Magistrate drew the only logical and reasonable inference that he could, and that was that the table and chairs on the pavement in front of the restaurant belonged to the restaurant for the purpose of running its food business.  On the evidence that the learned Magistrate accepted, this inference was irresistible.

9.  The grounds of appeal put before this court are devoid of any merit and fail.

10.  The appeal against conviction is dismissed and I confirm the conviction.