CHONG KIM YUNG v. HKSAR

FACC No. 5 of 2000

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 5 OF 2000 (CRIMINAL)

(ON APPEAL FROM HCMA No. 1222 of 1999)

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J U D G M E N T

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Mr Justice Bohkary PJ:

1. At the conclusion of the hearing on 19 February 2001, we allowed this appeal, quashed the appellant's conviction and set aside his sentence. We indicated that we would give our reasons later and this we now do by the judgment of Mr Justice Chan PJ.

Mr Justice Chan PJ:

2. Hawking is a fact of life in Hong Kong. For both social and legal reasons, it has become necessary to control and regulate such activity. The main control takes the form of a licensing system whereby only licensed persons are permitted to hawk at designated areas or at allocated places and subject to the conditions contained in the licence and to provisions set out in the governing statutes. The relevant legislation is the Public Health and Municipal Services Ordinance, Cap. 132 and the Hawker (Urban Council) By-laws (which was re-titled the Hawker Regulation by s. 7 of the Provision of Municipal Services (Re-organisation) Ordinance, Ordinance No. 78 of 1999 as a result of the re-organisation of the Urban and Regional Councils).

3. The appellant was an employee of a licence holder of a fixed pitch. He was convicted by Mr L C Siu, a Special Magistrate, of the offence of using a fixed pitch without a fixed pitch licence, contrary to By-laws 36(1) and 56(5) of the Hawker (Urban Council) By-laws. He was fined $800 and ordered to pay $800 costs. His appeal was dismissed by Pang J. He claims that he has suffered a substantial and grave injustice. With leave, he now appeals to this Court.

The issue

4. The issue before this Court is whether the appellant could be charged with and convicted of the present offence. This turns on a construction of By-law 36(1) which provides as follows:

Contravention of this by-law constitutes an offence under By-law 56(5). In essence, the real question is whether an employee of a licence holder can be prosecuted for this offence.

The trial

5. The main facts were not seriously disputed. On 27 July 1999, a hawker control officer saw the appellant sitting at a fixed pitch in the Wanchai District drawing some designs. It was a pitch engaged in the business of engraving seals and printing name cards. Upon demand, the appellant produced a licence in the name of one Lau Pak Ling and his own identity card. The licence holder was not at the pitch. When the appellant was questioned, he said he did not know where the licence holder had gone or when he would be coming back. That was the third occasion in the past few weeks when the officer went to the same fixed pitch and found the appellant alone in the absence of the licence holder. When he was charged, the appellant responded that he was only an employee working at the pitch and that he did not sell anything there.

6. At the trial, the appellant (who was then unrepresented) claimed that he was employed on a part-time basis for running errands and taking care of the pitch when the licence holder was not there. He admitted that he had been warned twice by the officer on two previous occasions, but had told the officer that he had provided his own information and photographs to the licence holder requesting the licence holder to apply for his registration as an assistant but the latter had apparently failed to do so.

7. After the appellant had given evidence, he applied to the magistrate for an adjournment to call the licence holder apparently to testify to the effect that he had indeed made a request for registration. The magistrate refused the application for the reason that such evidence would not be of any help to the appellant's defence. He was then convicted.

Decisions in the courts below

8. Having found that there was use by the appellant of the fixed pitch, the magistrate took the view that since the licence holder was not present at the pitch, the appellant would still be guilty of the offence even if he had been registered as an assistant. In his statement of findings, the magistrate elaborated as follows:

9. Pang J in dismissing the appeal stated as his main reason that the Ordinance was intended to ensure that no person other than the licence holder of a fixed pitch or persons designated by the licence holder and duly approved by the Urban Services Department shall use the fixed pitch and that in contravention of By-law 12(1A) of the Hawker (Urban Council) By-laws, the appellant was not a registered assistant of the licence holder.

10. Mr W S Cheung, together with Miss Vinci Lam, for the prosecution, quite fairly conceded that the magistrate's reasons were irrelevant for a charge under By-law 36(1) and that the judge's reference to By-law 12(1A) was inappropriate since it was not in force at the time of this alleged offence. Mr Cheung did not seek to support the conviction.

Scope of By-law 36(1)

11. By-law 36(1) has to be examined in the context of the whole licensing system. Under s. 83B of the Public Health and Municipal Services Ordinance, no person shall hawk in any street except in accordance with a licence issued under regulations made pursuant to s. 83A. The Hawker (Urban Council) By-laws which were made under that section provide generally that all hawkers are required to be licensed either as a fixed pitch hawker, an itinerant hawker or a temporary hawker (By-law 7) and to transact their business at designated places. For fixed pitch hawkers, each of them is allocated a fixed pitch. The licence holder is under a number of personal obligations. These include the following:

12. These provisions are aimed at ensuring that a hawker licence is granted to a person who genuinely wants to make a living by hawking and that he personally conducts his business at the allocated pitch and does not obtain the licence on behalf of another person and would not transfer or sub-license it to somebody else. The Hawker (Urban Council) By-laws do however permit the licence holder to be temporarily absent from his pitch for a reasonable cause (By-laws 11 and 38). It also allows him to employ an assistant (By-law 12(1)).

13. The purpose of By-law 36(1) is to ensure that only the holder of a fixed pitch hawker licence can use a fixed pitch. Neither a person who has no hawking licence nor a person who has a licence of a different type, i.e. an itinerant hawking licence or a temporary licence can do so. But is this by-law intended to catch an assistant employed by him under By-law 12(1)? The answer, in our view, must be no for the following reasons.

14. First, if an assistant employed by the licence holder were to be prosecuted and convicted under By-law 36(1), this would mean that he would be guilty of an offence even when the licence holder is present together with him at the pitch. Such a construction of this by-law would lead to the absurd result that the law allows a licence holder to employ an assistant to help him and yet punishes the assistant for helping him. We do not think By-law 36(1) can be construed in such a way as to hold an assistant liable.

15. Secondly, there is another by-law which regulates the activity of an assistant. By-law 12 (before the addition of paragraph (1A)) provided:

16. It is clear that this by-law allows the licence holder to employ an assistant to help him when he is there but not to take his place when he is not there without a good reason. This is consistent with the licence holder's personal obligation to run the hawking business. If an assistant is engaged in hawking when his employer is not at the pitch and cannot offer a reasonable explanation for such absence, he commits an offence under s. 83B of the Ordinance as an unlicensed hawker.

17. When By-law 36(1) is read together with By-law 12 and the other provisions which impose personal obligations on the licence holder, it is quite clear that the two by-laws serve different purposes. By-law 36(1) is not intended to catch an assistant when his employer is absent from the pitch. Further, the failure of the appellant to give an account of the licence holder's absence is, contrary to the magistrate's opinion, irrelevant for a charge under this by-law. The magistrate had unfortunately confused the two provisions.

Amended charge?

18. Since the magistrate had relied on the failure to give an account of the licence holder's absence as one of the reasons for convicting the appellant, could he have convicted the appellant if he had been minded to amend the charge to that under By-law 12(1)?

19. Mr Cheung conceded that the magistrate could not. Quite properly so. While an offence under By-law 36(1) is constituted by the use of the pitch, By-law 12(1) prohibits an assistant from engaging in hawking during his employer's absence (without good cause). The appellant was seen drawing some designs at the pitch which was allocated for the business of engraving seals or printing name cards. Although such evidence may be sufficient for a charge based on the making use of the pitch, it is, without more, clearly not sufficient to show that what the appellant was doing was engaged in hawking.

20. There is yet another reason why the magistrate could not have convicted the appellant under By-law 12(1). For an offence under this provision, it would be necessary to show that the appellant was an assistant of the licence holder; that he was engaged in hawking and that there was no reasonable cause for the licence holder's absence. The evidence of the licence holder would clearly be relevant. The appellant had indicated he wanted to call his employer, albeit for the wrong reason. That was understandable since he was not legally represented. By refusing to grant an adjournment to enable the appellant to do this, the magistrate had deprived the appellant of the opportunity to put up a possible defence. He could not have convicted the appellant without affording him such opportunity.

Conclusion

21. For these reasons, we took the view that there has been a substantial and grave injustice in this case, and allowed the appeal, so as to quash the conviction and set aside the sentence.