HKSAR v. NGAN LUNG CAFé AND NOODLES RESTAURANT LTD

HCMA 1135/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1135 OF 2004
(ON APPEAL FROM TWS 11319-11321/2004,
TWS 11441-11442/2004, & TWS 14831/2004)

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J U D G M E N T

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1.  The Appellant appeals its convictions by Mr Kevin Browne, a Magistrate, on six summonses which were issued against it, each alleging that it had carried on the food business of a restaurant whilst not being in possession of a licence, contrary to Regulations made under the Public Health and Municipal Services Ordinance, Cap. 132.  The summonses covered various stipulated periods between January and July 2004.

2.  Oral evidence was led before Mr Browne which related to the factual observations of a staff member of the Food and Environmental Hygiene Department.  She had visited the premises of the Appellant on the first date stipulated in each of the six summonses.  On each of her visits, she had observed customers being served with and paying for food, kitchens in operation producing meals and large quantities of food in the refrigerators.  On each occasion she had spoken to a person who indicated that he or she was in charge of the premises at that time and invited that person to produce a valid licence.  No licence was ever produced.  During the respective periods reflected in the summonses further visits had been paid by the witness to the premises: on each occasion she had observed that the company was continuing to carry on the food business of a restaurant.

3.  None of these assertions was challenged by the Appellant's representative, Mr Choi, before the magistrate.  He gave evidence.  He did not contradict any of the evidence led by the prosecution:  indeed, he confirmed that the Appellant had no licence.  The defence which he sought to sustain before Mr Browne was that there had been a previous error of law which had not yet been corrected, which had led to what was expressed, before me, as being a "syndicated cover-up" leading in turn to a grave miscarriage of justice.

4.  This matter was originally listed for hearing on 21 December 2004.  Shortly prior to that hearing the Appellant sought an adjournment and requested "the provision of full transcripts" of the proceedings before Mr Browne.  His Honour Judge Pang, sitting as a Deputy Judge of the Court of First Instance, caused the Appellant to be advised that any such application need comply with Practice Direction 9.6.. When the matter came on before him on the 21st December 2004 the Appellant applied for an adjournment as well as an order that the court direct that a full transcript be provided.  Having heard the Respondent’s counsel, the application for a transcript was refused.  However, the adjournment was allowed.  The Appellant was advised that if it required a transcript it was at liberty to apply for one at its own cost, direct to the appropriate magistracy.  The Deputy Judge directed that the matter not be listed before him again.

5.  The matter was listed to be heard before me on 28 January 2005.  By letter dated 17 January 2005 application was made to adjourn the matter further on the grounds that the Appellant's representative who had been involved in the matter throughout, Mr Choi, had to attend court in Shatin Magistracy that day in respect of "another matter".  I refused that application and indicated that the matter was to proceed as listed.

6.  On 28 January 2005 the Appellant indicated that it was "not ready for the appeal" because it had not obtained the transcript from the magistracy.  It contended that it was entitled to be provided with the transcript as a matter of right pursuant to Article 11 of the Hong Kong Bill of Rights Ordinance, Cap. 383.  In particular it sought to rely on the provisions of Article 11 (2) (b) and (4).  There is no merit in this submission.  An appellant in an appeal from a magistrate is not entitled, as of right, to the provision of a transcript of the evidence in the trial: HKSAR v CHOW Yuen-han HCMA772/1999.

7.  The argument which the Appellant proposed to advance before me on appeal was the same as that which it had sought to advance before Mr Browne at trial.  It did not relate to any factual matters, as has already been seen:  it follows that the Appellant's contentions could be aired, afresh, assuming them to be relevant, on the appeal and that the content of the transcript was not necessary for the appeal proceedings.  There was thus no good reason why I should order the preparation of a transcript of the trial proceedings.  In addition, the Appellant was unable to demonstrate to me that application had been made already to the magistracy and that the transcript was awaited.  I refused the application for an adjournment and directed that the appeal proceed.

8.  There is a substantial history to this matter.  As devoid of merit as is this appeal, in an attempt to put this matter finally to rest I shall deal, briefly, with the history insofar as it relates to the Appellant's contentions. 

9.  The Appellant company operates from premises in Tsuen Wan.  It has been prosecuted on previous occasions.  In early 2002 the Appellant was the subject of six similar summonses.  It was the contention of the Appellant in those proceedings that its licence had been wrongly suspended and cancelled, complaint being made about the imposition of a penalty point scheme by the Food and Environmental Hygiene Department:  it was pursuant to the provisions of that scheme, which the Appellant claimed was unlawful, that its licence had been suspended then cancelled. 

10.  On 28 March 2002 the Magistrate who heard those summonses, Mr C. C. Poon, acquitted the Appellant.  On 24 June 2002 the prosecution sought a review of his previous decision pursuant to the provisions of section 104 of the Magistrates Ordinance, Cap. 227.  On 29 June 2002 he allowed that review finding that the Appellant was not entitled to challenge the legality of the administrative act suspending and cancelling its licence.  On 20 August 2002 the Appellant was then convicted of the offences set out in the six summonses.

11.  It is pertinent to note that the Appellant did not appeal those convictions.

12.  The Appellant was prosecuted again in 2002.  On this occasion five summonses were issued against it.  It was convicted on 20 November 2002 by another Magistrate, Mr Lambert Lee.  Effectively, the Appellant ran the same defence in front of Mr Lee as it had in front of Mr Poon.  Mr Lee also convicted the Appellant.  This time the Appellant appealed that conviction. 

13.  At the hearing of that appeal, HCMA18/2003, before Nguyen, J., the Appellant was allowed to venture three grounds of appeal:  firstly, that Mr Poon's original decision to review the acquittal of the Appellant and was an error of law;  secondly, that the decision to suspend and cancel its licence was unlawful;  and, thirdly,  that Mr Lee was aware of the earlier proceedings and should have the recused himself.

14.  The appeal was dismissed.  Nguyen, J., found that Mr Poon had acted entirely properly pursuant to the provisions of section 104 of the Magistrates Ordinance when he decided to review his decision.  Before me, the Appellant sought to revisit that issue indicating that the "only ground of appeal" is that Mr Poon’s review constituted an error of law which has become the subject of a cover-up by Mr Poon and Nguyen, J., the consequence being that the Appellant has suffered a substantial and grave miscarriage of justice. 

15.  The Appellant advanced the substantial and grave miscarriage of justice argument before Mr Browne who, understandably, dismissed it.  Mr Browne’s name is now added to the list of those involved in the cover-up.

16.  As Nguyen, J., noted in his judgement, the Appellant had not proceeded with any appeal in respect of the first set proceedings before Mr Poon and that, therefore, the propriety or otherwise of Mr Poon's decision was not a matter for his determination.  However, Nguyen, J., indicated in his judgment that Mr Poon had acted correctly in accordance with the powers conferred on him by sec. 104 of the Magistrate’s Ordinance.  Whether or not making that finding would have rendered it susceptible to appeal is now of no consequence.

17.  In so far as the Appellant's contentions regarding the unlawfulness of the suspension and cancellation of its licence is concerned, the judgement of Nguyen, J., sets out and considers the scheme operated by the Department in detail.  It contains a chronology of events leading up to the cancellation of the Appellant’s licence.  It recites the various appeals by the Appellant against decisions made at different stages during that process, as well as one instance where an appeal was abandoned by the Appellant.  It sets out the applicable law.  The learned judge concluded:

“	In my judgment the Director had not acted unreasonably in enforcing the objects of the Ordinance.  My judgment is that he had acted reasonably and with ample justification.”

18.  Merely for the sake of completeness, Nguyen, J., also found that there was no merit in the contention that Mr Lee had been under a duty to recuse himself.

19.  Mr Browne specifically invited the Appellant’s representative to, as he puts it “…point out where he considered the learned judge had fallen into error.”  He was, unsurprisingly, unable to do so. 

20.  Furthermore, the Appellant sought a certificate from Nguyen, J., with a view to appealing to the Court of Final Appeal.  That certificate was refused.  This is common cause between the parties.  The Appellant says that it then applied to the Appeals Committee of the Court of Final Appeal for leave to appeal which was refused without the application being referred to an oral hearing.  Mr Cheng, who appeared before me for the Respondent, was unaware of that application.  Be that as it may, I am prepared to accept that that happened.

21.  The Appellant contends that because the Appeals Committee refused leave to appeal the issue (as to whether Mr Poon was correct to review his decision) it has not yet been finally determined and that, until it is, the Appellant continues to be the victim of a grave miscarriage of justice.  In a matter of this nature the decision of the Appeals Committee is final:  there are no other avenues open to the Appellant.

22.  Undaunted, the Appellant further contends that, in order for this matter to be properly ventilated, further evidence should be admitted on appeal.  To this end, it proposed that evidence should be heard, presumably by me, from Nguyen, J., and Messrs Poon and Mr Browne in optimistic anticipation, so it seems, of their acceptance of the "syndicated cover-up".

23.  The Appellant appears to be unable, or unwilling, to appreciate that it has exhausted all of its remedies in respect of the issues that it raised three years ago before Mr Poon and thereafter before Nguyen, J.. 

24.  I am concerned solely with one matter in this appeal:  the correctness or otherwise of the convictions by Mr Browne.  No defence was advanced at trial other than the grave miscarriage of justice argument.  There is, for the reasons which I have endeavoured to set out in simple terms in this judgement, no merit in that argument insofar as the proceedings before Mr Browne are concerned.  Similarly, there is no merit in that argument in so far as this appeal is concerned.

25.  The Appellant was properly convicted in these proceedings.  The appeal is dismissed.