CHONG KIM YUNG v. HKSAR

(Not for circulation)
FAMC No. 12 of 2000

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 12 OF 2000 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 1222 OF 1999)

_____________________

____________________________

D E T E R M I N A T I O N

____________________________

Mr Justice Silke NPJ :

1. This is the determination of the Appeal Committee.

2. The applicant was employed - and had been so for some 15 years - as an assistant to a fixed pitch Hawker licensee.

3. His duties were of a fetch and carry nature and he worked part time.

4. He was summoned under By-law 36(1) of the Hawker (Urban Council) By-laws for using, on 27th July 1999, a fixed pitch without being the holder of a fixed pitch hawker licence. We use the terminology in existence at the time of the offence. Now the amendments made by the Provision of Municipal Services (Reorganization) Ordinance 78/1999 speak of Hawker Regulations amongst other things.

5. These regulations are made under the provisions of s.83A of the main Ordinance - Public Health and Municipal Services Ordinance Cap.132 as now amended.

6. Section 83B of the main Ordinance in its subsection (1) states :

"(1) No person shall hawk in any street except in accordance with a licence issued under regulations made under section 83A."

and in its subsection (3) states :

"(3) Any person who contravenes subsection (1) shall be guilty of an offence."

7. "To use" is defined in the By-laws (section 2) as including, in relation to a fixed pitch, "to place or to acquiesce in the placing of any commodity, equipment, or other object on the pitch or on a stall on the pitch".

8. By-law 12(1) permits a licensee to employ assistants but prohibits such assistant from engaging in hawking during the absence of the licensee from his pitch - other than absence for reasonable cause. By paragraph (3) a person who acts as an assistant in contravention of paragraph (1) is deemed to be hawking without a licence in contravention of section 83B of the main Ordinance.

9. Regulation 12(1A), brought into force on 1st January 2000, the date of commencement of Ordinance 78/1999, provides that a licensee shall not, for the purpose of hawking, employ or be assisted by a person other than a person whose name is endorsed by the Director on his licence - and this subsection states specifically that it is "subject to" Regulation 12(1).

10. It is, at the least, unclear what "subject to" Regulation 12(1) is intended to convey. Further this is a requirement of the licensee not of the assistant. Contravention would be the offence of the licensee. But this subsection has no retrospective effect.

11. On 17th November 1999 the applicant was convicted after trial before a Special Magistrate and fined $800 and ordered to pay costs of $800.

12. He appealed to the Court of First Instance and that appeal was dismissed on 13th May 2000.

13. He now seeks leave, on the suggested basis of a substantial and grave injustice, to appeal to this court.

14. At the time of the visit by Urban Services personnel he was alone at the pitch : drawing a sketch said the prosecution : simply looking after the pitch in the absence of the licensee said the applicant.

15. There was evidence that, when questioned at the scene, the applicant said he did not know where the licensee was.

16. In the course of the trial he applied for an adjournment to call the licensee. He was refused.

17. In his written submissions to us he says the licensee had gone to attend the District Court.

18. The Special Magistrate said that he could not see how the presence of the licensee as a witness could help the applicant. It may be that he did not fully appreciate the possible significance of the terms of By-law 12(1) and the defence which might arise out of it and upon which the applicant could rely.

19. Had the adjournment asked for been granted, and the licensee had given evidence, it may well be he would have shown his absence from the pitch to have been for "reasonable cause".

20. In the appeal to the Court of First Instance the judge appears to have concentrated on the provisions of the new Regulation 12(1A) to the exclusion of By-law 12(1). But, as earlier mentioned, Regulation 12(1A) could not have had any effect upon an alleged offence committed in July 1999.

21. This, and the evidence as to that which the applicant was actually doing, suggests to us that there are two matters which merit the further consideration of this Court. First, was the then By-law 12(1), in the known circumstances here, capable of erecting a good defence to the summons brought against the applicant; and : did the refusal of an adjournment by the Special Magistrate have the effect of preventing that defence being properly canvassed. Second, was the use of By-law 36, on the evidence, the correct By-law of which to allege contravention; and : did the evidence justify a conviction under it.

22. The application for leave is granted.