HKSAR v. TRI-VIEW LTD AND ANOTHER

HCMA 511/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 511 OF 2005

(ON APPEAL FROM ESS 31496/2004 to ESS 31499/2004)

____________

____________

_______________

J U D G M E N T

_______________

1.  These two Appellants, each a limited company, operate the establishment at 88 Tai Tam Reservoir Road known as Hong Kong Parkview Club and Suites (which I will refer to as “Parkview”).  Each of them faced two charges laid under the Hotel and Guesthouse Accommodation Ordinance, Cap. 349 (which I will refer to as “the Ordinance”).  The 1^st Appellant faced the first and third charges while the 2^nd Appellant faced the second and fourth charges.  All the charges were identical save that the charge period for the first and second charges was the period between 15 and 16 May 2004 while the charge period for the third and fourth charges was the period between 7 and 9 October that year.  The particulars of each charge were that at Parkview the company charged operated or otherwise had control of a hotel in respect of which neither of the conditions indicated in s. 5(2) of the Ordinance was satisfied.

2.  Appearing before I.S.C. Candy, Esq. in the Magistrate’s Court at Eastern, the Appellants pleaded not guilty, but were convicted as charged.  They now appeal against conviction.

3.  The long title of the Ordinance states that it is an Ordinance “to provide for the regulation, control and safety of hotel and guesthouse accommodation and for connected purposes”.  By s. 2(1), “hotel” and “guesthouse” are defined to mean:

“any premises whose occupier, proprietor or tenant holds out that, to the extent of his available accommodation, he will provide sleeping accommodation for any person presenting himself who appears able and willing to pay a reasonable sum for the services and facilities provided and is in a fit state to be received.”

4.  As for the expression “presenting himself”, subsection (2) was added to s. 2 after Duffy J’s decision in R v Triview Ltd [1996] 2 HKCLR 42, and s. 2(2)(b) provides that “presenting himself” includes:

“	(i)	any person presenting himself in person;
	(ii)	any person presenting himself through an agent or a representative;
	(iii)	any person presenting himself, whether in person or through an agent or a representative, by facsimile, letter, telegram, telephone or any other means;
	(iv)	any person presenting himself, whether in person or through an agent or a representative, with prior booking or notice;
	(v)	any person presenting himself, whether in person or through an agent or a representative, without prior booking or notice.”

Counsel for the Appellants says that the Legislature has misunderstood Duffy J’s decision in the 1996 Triview case.  My task is not to decide what the Legislature may or may not have understood to be the effect of that decision.  My task is to proceed on the proper meaning to be attributed to what the Legislature has enacted.

5.  Section 5, which is the section under which the Appellants were charged and convicted, reads:

“	(1)	Any person who on any occasion operates, keeps, manages or otherwise has control of a hotel or a guesthouse in respect of which neither of the conditions indicated in subsection (2) has been satisfied commits an offence and is liable on conviction to a fine of $200,000 and to imprisonment for 2 years and to a fine of $20,000 for each day during which the offence continues.
	(2)	The conditions referred to in subsection (1) are –
		(a)	that a certificate of exemption has been issued under section 6 in respect of the hotel or the guesthouse and is for the time being in force; or
		(b)	that a licence has been issued under section 8 in respect of the hotel or the guesthouse and is for the time being in force.
	(3)	It shall not be a defence that a person charged with an offence under subsection (1) did not know that neither of the conditions indicated in subsection (2) had been satisfied.”

6.  There has never been any dispute that no certificate of exemption or licence has been issued in respect of Parkview.  The Appellants’ case is that Parkview is neither a hotel nor a guesthouse and that, accordingly, no certificate of exemption or licence is needed for it.

7.  The evidence on which the charges were brought came from traps set by the Home Affairs Department’s Office of Licensing Authority (to which I will refer as “the OLA”).  These traps involved sending OLA personnel to Parkview posing as guests.  It all took place in 2004.  Taking part were a Mr Yeung, a Mr Sit and a Mr Poon.  Mr Yeung was a Building Surveyor seconded to the OLA.  Mr Sit and Mr Poon were Licensing Inspectors of the OLA.

8.  On 15 May, pursuant to an online booking for a suite for the 15th and 16th of that month, Mr Yeung went to the reception at Parkview and was checked into a suite as booked.  This was the trap for the first and second charges.

9.  On 7 October, pursuant to a telephone booking for a suite for the 7th and 8th of that month, Mr Sit went to the reception at Parkview and was checked into a suite as booked.  Later that day i.e. the 7th, pursuant to a similar booking, Mr Yeung went there and was checked into a suite as booked.  On 8 October, pursuant to on online booking for a suite for the 8th and 9th of that month, Mr Poon went there and was checked into a suite as booked.  These were the traps for the 3rd and 4th charges.

10.  The following Amended Perfected Grounds Of Appeal have been filed on behalf of the Appellants:

“	1.	The Magistrate erred in:
	1.1.1	Finding that the definition of “hotel” in section 2(1) of the Hotel and Guesthouse Accommodation Ordinance, Cap. 349 (Ordinance), simply applies to all accommodation provided on a daily basis and/or is satisfied if that requirement is met.
	1.1.2	Failing to pay any or any due regard to the additional conditions and restrictions imposed by the Appellants and broad discretion reserved by them, which took the matter outside section 2(1) of the Ordinance.
	1.1.3	Failing to properly identify and make findings as to the elements (actus reus, mens rea) of the offence in question (section 5(1) of the Ordinance).
	1.1.4	Finding that evidence that persons were able to make prior bookings by telephone for accommodation at the Appellants’ premises at “Parkview” established that the Appellants were holding themselves out as willing to provide sleeping accommodation to a person who presented himself at the premises and who appeared able and willing to pay a reasonable sum for the services and facilities provided and was in a fit state to be received.
	1.1.5	Finding that mere provision of accommodation to the prosecution’s covert operatives evidenced a holding out of the required type.
	1.1.6	Failing to find that there was no or no sufficient evidence to establish the essential elements of the offence.
	2.	The Magistrate should have found:
	2.1	That the definition of “hotel” in section 2(1) required a holding out on a specific and limited basis, as is clear on the wording of that provision.
	2.2	That the Appellants did not so hold out.
	2.3	That the definition of “hotel” in section 2(1) of the Ordinance was the same in all material respects as the common law definition of an “inn” and that the definition applied to occupiers, proprietors or tenants of property who were willing to provide sleeping accommodation to persons who presented themselves at the premises without a prior booking or who in any event obliged themselves to take in persons on satisfaction of certain limited criteria.
	2.4	That there was no evidence that the Appellants were willing to provide sleeping accommodation to (1) a person who simply presented himself at the premises without a prior booking or (2) otherwise in terms of section 2(1).”

11.  I do not accept the Appellants’ contention as to the law.  In my judgment, premises can come within the definition of “hotel” under the Ordinance even if sleeping accommodation is provided only to persons with a prior booking.  Section 2(2)(b) makes that plain by providing in terms that the expression “presenting himself” includes doing so “without prior booking or notice”.

12.  I do not accept the Appellants’ argument that what the Ordinance means by “hotel” and “guesthouse” is the same as what the common law means by “inn”.  In declining to accept that argument, I am not forgetting the relevant presumption.  It has been said that in the absence of any clear indication to the contrary, legislation can be presumed not to have altered the common law further than was necessary to remedy the mischief at which the statute is aimed: see per Lord Reid in Black-Clawson Ltd v Papierwerke AG [1975] AC 591 at p. 614C.  Here there are clear words to the contrary.  The way in which “hotel” and “guesthouse” are defined by the Ordinance leaves no room for the Appellants’ argument.

13.  Nor is it merely a matter of language.  After citing that statement by Lord Reid, the author of F.A.R. Bennion Statutory Interpretation, 4th ed. (2002) says at p. 697: “It is submitted that the better view is that earlier expressed by Lord Wright extra judicially [in (1945-47) 9 CLJ 2 at p.3] when he said that the principle that an Act of Parliament should be construed so as not to change the common law more than seemed unavoidable is now discredited”.  I think that it is a matter of context.  Where a cherished principle of the common law is concerned, the presumption against legislative alteration would be a strong one.  But no such principle is concerned in the present context.  The present context is one in which legislation was enacted to bring regulation and therefore safety where there had been danger due to lack of regulation.  In such a context, particular regard should be paid to s. 19 of the Interpretation and General Clauses Ordinance, Cap. 1, which provides that:

“An Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit.”

14.  As for the Appellants’ argument that any interpretation of “hotel” broader than the one for which they contend would sweep in the sub-letting or sharing of flats, I would point out that such arrangements do not involve checking persons in for a few days only –– which is what conventionally happens at hotels and happened at Parkview.  And para. 5 of the Schedule to the Ordinance excludes from the Ordinance’s application:

“Premises in which all accommodation is exclusively provided on the basis of a minimum period of 28 continuous days for each letting and no waiver, refund or reduction of fees will be made if the letting is for any reason shortened to less than 28 continuous days.”

15.  Without reciting all of the submission made by counsel for the Appellants, I will simply state that, after careful consideration, I am satisfied that Parkview is a hotel within the meaning of the Ordinance, and that the charges in this case have been properly proved.

16.  For the foregoing reasons.  The appeal is dismissed.