HKSAR v. TANG YUK FUN AND OTHERS

HCMA706/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.706 OF 2001

(ON APPEAL FROM TMCC 875 OF 2001)

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J U D G M E N T

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1. The three appellants were convicted of the charge of carrying on business as a travel agent without a licence, contrary to section 9(a) of the Travel Agents Ordinance, Cap.218. They were found guilty on 18 May 2001 by Mr H.H. Tam sitting at Tuen Mun Magistracy. They were each fined a sum of money. The three appellants now appeal against their convictions. The 1st and 3rd appellants are unrepresented and the 2nd appellant is represented by counsel.

2. The facts of the case are that the 1st and 3rd appellants were partners of a book shop in Tuen Mun. The book shop operated under the name Wah Yang Book Stationery Book Shop. The 2nd appellant was their employee. On 8 December 2000, a woman police officer posed as a customer and went to the book shop in question. There she purchased from the 2nd appellant two bus tickets to go from Hong Kong to Guangzhou. The tickets were issued in the name of New Bus (China - Hong Kong) Management Limited ("New Bus"). That company had a registered office in Yuen Long but also took out a Business Registration Certificate which specified as its address, the address of the book shop in Tuen Mun. From the documents produced at the trial, it was apparent that the arrangement whereby the book shop sold bus tickets on behalf of New Bus had started some time before the date in question. Amongst the documents produced were receipts issued by New Bus through the book shop to acknowledge receipt of amounts paid by the book shop into the bank account of New Bus. The receipts started in June 2000. There was one receipt in each month. The last one produced was dated October 2000. There were also pay-in slips of various amounts paid into the account of New Bus by the book shop. There was no evidence before the court as regards what the arrangement was between New Bus and the book shop. However, the magistrate drew the inference correctly in my view that there must have been some sort of agreement between New Bus and the book shop.

3. The defence called no evidence at the trial. The only other evidence available to the prosecution was the cautioned statement made by the 2nd appellant. In the cautioned statement she said that she was an employee of the book shop and that each month it was the 1st appellant who paid her a salary. She had worked in the book shop as a sales person for three years. In the early part of 2000, she began to sell bus tickets. There were posters which were posted in the book shop. Every time a customer wanted tickets, she would ring up the Bus Company to see if tickets were available. If they were, she would enter into a record the date of the trip, the time of the trip, the seat number and thereafter the transaction of the customer would be completed. When all the tickets were sold, she would inform the Bus Company to request for more tickets. One or two days later, the Bus Company would send someone to deliver the tickets to the book shop. Each month after the book shop had deducted 10% of the cost of the tickets as a service fee it would pay the balance into the account of the Bus Company. The Bus Company would then issue a receipt to the book shop for the amount paid in.

4. Section 9 of Cap.218 under which they were charged states :

"No person shall carry on business as a travel agent -

(a) without a licence; or"

5. "Travel agent" is described in section 4 of the Ordinance as follows :

"(1) Subject to subsection (2), a person carries on business as a travel agent if he holds himself out as carrying on the business of, and carries on the business of, obtaining for another person -

(a) carriage, by any means of conveyance, on a journey which is to commence in Hong Kong and which thereafter is to take place mainly outside Hong Kong; or

...

(2) A person does not carry on business as a travel agent -

(a) under subsection (1)(a) in respect of carriage by means of conveyance if the means of conveyance is one of which he is an operator; or

...

(3) In this section 'operator' (營運人), in relation to a means of conveyance, means the person who alone or with others has for the time being the management of that means of conveyance."

6. The main ground of appeal advanced by Mr Lau on behalf of the 2nd appellant is firstly, that the 2nd appellant was not carrying on business as a travel agent because she was merely a paid employee and the business belonged to the 1st and 3rd appellants. The second ground of appeal that Mr Lau relied upon was that as the 2nd appellant was only an employee of the book shop, the book shop was an agent of the New Bus Company. The New Bus Company was the operator of the buses in question and under sub-section 4(2), it was exempted from the provisions of the Ordinance. Mr Lau's point is that because the book shop was the agent of the Bus Company, the book shop was similarly exempted. The response by Mr Lee, appearing for the respondent, is quite simply that the proposition advanced by the appellant's counsel was unsupported by any authority and was in any case incorrect.

7. Mr Lee was unable to find any authorities or anything in the textbooks to support the proposition advanced. However, in Bowstead on Agency, 15th edition, p.439, Mr Lee was able to find something which supported his submission. In relation to defences to civil suits, the author of the book said this :

"Where the agent is sued on the main contract, he can presumably plead defences arising out of the contract, and defences personal to himself, but not defences personal to the principal."

8. A fortiori Mr Lee submits that defences personal to the principal to a criminal charge cannot be relied upon by the agent. Mr Lee submitted that if the agent had purported by his contract with the principal to contract out the legal requirement of having a licence, that contract would be an illegal contract.

9. In my view, the 2nd appellant as the employee of the 1st and 3rd appellants, was aiding and abetting the 1st and 3rd appellants to carry on the business. The business which was carried on was by virtue of section 4 of the Ordinance that of a travel agent. In my judgment, the exemption granted to the operator of the means of conveyance did not extend to the book shop because the book shop itself or the 1st and 3rd appellants and the 2nd appellant neither alone nor together with others had the management of the means of conveyance nor have that management even for the time being. That exemption could arguably be said to apply to the Bus Company as a bus company did, either alone or together with others, have for the time being the management of the buses in question.

10. In my judgment the book shop cannot be said to be the operator of the buses because the book shop was a separate entity from the Bus Company and the book shop had no means of controlling the management of the buses. In my judgment, therefore, the 1st and 3rd appellants were carrying on business as a travel agent. The 2nd appellant was aiding and abetting them to carry on that business. There was no evidence before the magistrate that any of them or the book shop had a licence to carry on such a business and therefore in my view, the magistrate was correct to have found them guilty of the charge. The submission by the 3rd appellant was that she had another job and she did not take part in the running of the book shop at all. She had, according to her, asked the 1st appellant who was her mother, if what they were doing was permissible, and she was told that the Bus Company had told her mother that it would be all right. In addition, the 3rd appellant submitted that the Business Registration Certificate of the New Bus Company, giving the address of the book shop as the address of the New Bus Company, was actually hung in the premises of the book shop. In my view, none of those matters affords a defence to the charge.

11. The appeals against convictions are therefore dismissed.