THE QUEEN v. LEUNG YI MEI AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 300 & 301 OF 1995

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JUDGMENT

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1. These were appeals against convictions for breaches of licence conditions under ss. 19(1)(a) and 19(5) of the Amusement Game Centres Ordinance, Cap.435. The facts in both were very similiar and were that a police officer entered the Games Amusement Centre and found there a boy under 16. He approached the appellants asking who was the person in charge and they told him that they were for the time being in charge. It was an admitted fact that the boy found in the premises was under 16. The game centre had a licence as an adult centre which meant that no one under the age of 16 could lawfully be on the premises.

2. Mr Yim who appeared on the appeal advanced a number of grounds. Suffice it to say that only one ground gave me any concern. He submitted that there was no evidence that the appellants knew that the boy was under 16 at the time. He submitted that the offence was not an offence of strict liability and that mens rea had to be established in the normal way by the prosecution. Section 19 of the Amusement Game Centres Ordinance is as follows : -

          "19. Offences in relation to a licence

commits an offence.

3. The licensee therefore has a defence, if he can prove that he did not know and had no reason to suspect that the boy was under 16 and that he could not, by the exercise of reasonable supervision and diligence, have prevented the young boy from entering the premises. That defence is not stated as being available to the operator, keeper or manager or any person otherwise in control of the premises.

4. Nor, however, does s. 19 anywhere state that it shall not be a defence that a person charged with an offence under subsection (1) did not know that the centre was being operated in contravention of any of its licensing conditions. This is to be contrasted with s.4 which deals with the ban on operating an amusement games centre without a licence. Subsection (2) of s.4 states:

"It shall not be a defence that a person charged with an offence under subsection (1) did not know that the operation of the amusement game centre which is the subject of the offence was not licensed"

That section in unequivocal terms makes it an offence of strict liability to operate, keep, manage or otherwise have control of an amusement game centre without a licence. It seems to me, therefore, that had the legislature had the same intention in relation to the offences described under s.19, then once more in unequivocal terms it would have stated that the offence was one of strict liability. This it has not done. It is therefore in my view incumbent upon the prosecution to establish knowledge or mens rea in the defendant in any case under this Regulation. It is only in the case of the licensee that the offence is one of strict liability, although there is a stated statutory defence.

5. In this case, no evidence was led by the prosecution that the Appellants knew that while they were in control of the establishments they were operating in contravention of a licensing condition, namely that there was a underage young man in the premises. The matter was never addressed by the learned magistrate in his Statement of Findings. In that event, I must allow these appeals.