R. v. CHU YU KAI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No. 234 OF 1997

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J U D G M E N T

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1. The appellant was convicted after trial on two summonses of carrying on the food business of a restaurant at Ground Floor, 118 Fuk Wing Street, Kowloon between 7^th March 1996 and 7^th May 1996 and between 8^th May 1996 and 9^th July 1996. The respondent's case was when health inspectors went to the premises in question on a number of occasions during the period from 7^th March 1996 to July 1996, they found a restaurant Tak Fung Noodles Restaurant was in operation. There was no food business licence issued in respect of the premises. On all the visits, they did not see the appellant. They ascertained the name of the appellant by checking the record of Business Registration which the respondent said showed that the appellant was one of the partners of the food business. They prosecuted the appellant for the offences.

2. The appellant's case was that there were two partners in the business registered with the Inland Revenue Department. But he indicated to the magistrate at the trial that he had withdrawn from the business before the offences in question. The appellant was given an adjournment to produce proof of his withdrawal. On the adjourned date, the appellant asked for further adjournment to obtain proof. The magistrate refused further adjournment. The appellant was convicted.

3. The appellant now appealed. One of the grounds of appeal was that the magistrate failed to assist the appellant who appeared in person and failed to enquire into the circumstances of the appellant's claim that he had withdrawn from the food business before the offences. The appellant had now obtained from the record of the Inland Revenue Department his notice of change of partners and he sought to adduce that for the court's consideration by way of additional evidence. The respondent had no objection to its production. This is an extract from the business register which records that the appellant had given notice to the Inland Revenue Department that he had withdrawn from the partnership carrying on business as Tak Fung Noodles at 118, Fuk Wing Street, G/F, Kowloon as from 1^st March 1996.

4. The respondent conceded to this evidence showing that the appellant was no longer a partner of the food business at the premises when the offences occurred. The respondent conceded that the appellant should not be held responsible for the offences and that the appeal should be allowed. In the circumstances, the appeal is allowed and sentences set aside. Any fine paid should be refunded to the appellant.