R. v. TAM YUK HA

HEADNOTE

Food Business (Urban Council) By-laws., Cap. 132- Addition to approved plan- Difference of meaning in the English language text and the Chinese language text of the ordinance - the difference cannot be reconciled.

Under bi-ligual legislation, both the English language text and the Chinese language text of an ordinance are equally authetic. It is not the English language text which prevails over the Chinese language text nor vice versa. It is the two authetic texts together which make up the legislation enacted by the Legislative Council. Section 10B of the Interpretation and General Clauses Ordinance refers.

Although permission had not been obtained from the Chief Justice to use the Chinese language as the language of the Court during the appeal, the court is entitled to refer to the Chinese language text of the ordinance to see if the offences had been made out.

If one of the authetic texts is ambiguous and the other authetic text is clear and plain, the court must reconcile the difference of meaning of the two authetic texts in a way so as to give effect to the authetic text with a clear and plain meaning.

If the two authetic texts cannot be reconciled with one another, the only reasonable step to take is to give effect to the authetic text which favours the appellant.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 933 OF 1996

(On appeal from Case Nos. WSS 8957/96 and 8961/96)

_______________

J U D G M E N T

_______________

1. The appellant Tam Yuk Ha was convicted before a magistrate on two summonses of being the licensee of a fresh provision shop, without the permission in writing of the Urban Council, permitted addition to the approved plan of the said fresh provision shop, which resulted in a material deviation from the plan approved under By-law 33 of the Food Business(Urban Council) By-laws., Cap. 132.

2. The two offences were said to have been committed on the 5th and 18th of December 1995 respectively. The alleged addition on the 5th of December 1995 was a metal tray and the alleged addition on the 18th of December 1995 were 3 metal trays, a chopping block and a table. The metal trays, the chopping block and the table were all placed on the pavement outside the appellant's shop.

3. The appellant now appeals against the convictions only.

4. It is not in dispute that the appellant has been the licensee of the fresh provision shop at ground floor, 13, Gage Street and 26D, Graham Street, Central Hong Kong for a period of 10 years. She operates the Man Kee Shop selling pork and sea water fish. In respect of the said premises, the Urban Services Department had approved a floor plan and the appellant had not applied for any alternation or addition to such plan.

5. According to the prosecution, during a visit by a health inspector (PW2) of the appellant's shop on the 5th of December 1995, a heavy metal tray was placed outside the appellant's shop and there were about 15 kg. of dead fish on the metal tray. A woman was seen hawking fish.

6. The appellant was located and she said the fish was part of her business when questioned if the metal tray and the fish belonged to her. She was then told that she had violated. By-law 35(a) of Cap. 132 and that she would be summonsed for extension of the business without obtaining prior approval.

7. Another health inspector (PW3) visited the appellant's shop again on 18th of December 1995. 3 metal trays, a chopping block and a table were found placed outside the appellant's shop. A customer was seen selecting the fish which was then taken inside the shop to be cleaned before it was given to the customer.

8. On the 18th of December 1995, the appellant's son Mr. Leung Sui Fei was in the shop and was recorded as the person in charge of the shop.

9. The appellant denied having seen the health inspector on the 5th of December 1995. She said she had never admitted that the fish was hers. She suggested that it was some other hawkers who had been selling fish outside her shop. She said those hawkers had caused obstruction and she had received many summonses for such obstruction. She paid the fines for them and she did not make any complaint as she did not know how to make a complaint.

10. In support of the appeal, a number of points were raised.

11. It was suggested firstly that there was insufficient evidence to show the connection between the offending articles with the appellant. It was further suggested that when the health inspectors referred to someone else hawking fish outside the appellant's shop, they could be talking about other hawkers unconnected to the appellant at all.

12. I do not find this issue difficult to resolve at all. The metal trays and the other items were just placed outside the appellant's shop. Fish selected by customers would be taken into the shop for cleaning. She had even been paying fines for obstruction arising out of those items on many previous occasions. The only reasonable inference is that the metal trays and other items did belong to the appellant and they were part of her business.

13. There was of course the further evidence that the appellant herself admitted to the health inspector that the fish on the metal tray did belong to her and was part of her business. The learned magistrate was quite entitled to come to the conclusion as she did that the appellant was responsible for the metal trays and the other items in question.

14. It was further suggested on behalf of the appellant that the floor plan (P.1) produced at the trial in support of the charges was not the floor plan of the appellant's shop. The address given in the floor plan P.1 was 13A Gage Street, G/F. Central, Hong Kong and the address of the appellant's shop was described in the summonses as Ground Floor 13, Gage Street and 26D, Graham Street Central H.K. which was also the address given by the health inspectors as the address of the appellant's shop.

15. It is true that there is a minor discrepancy between the address of the appellant and that which was shown in the floor plan. (P.1) But the floor plan indicated that the premises in question was at the junction of Gage Street and Graham Street which was the location of the appellant's shop. The floor plan P.1 actually bore the name of the appellant's shop, Man Kee.

16. In any event, when the floor plan P.1 was produced at the trial, it was produced as the floor plan of the appellant's shop. The appellant did not raised any objection and did not dispute such assertion. She could not in this appeal suggest that the floor plan P.1 was not that of her shop.

17. The only point worthy of consideration is whether the placing of metal trays and other items outside the appellant's shop constitutes an addition within the contemplation of By-law 35 of the Food Business (Urban Council) By-laws.

18. By-law 35 provides as follows:

"After the grant or renewal of any licence, no licensee shall, save with the permission in writing of the Council, cause or permit to be made in respect of the premises to which the licence relates-

(a) any alteration or addition which would result in a material deviation from the plan thereof approved under by-law 33;..................."

19. When one talks about addition to a plan, one naturally has in mind addition in the form of some fittings and fixtures or some form of building or construction work. If that is the approach to adopt, the placing of metal trays on the pavement in front of a shop cannot be addition to a plan.

20. But the plan referred to under by-law 35 is a plan approved under by-law 33. It is therefore helpful to refer to by-law 33 which provides:

"Every application for a licence under this part shall be made in writing,..............., such plan shall include particulars of the following matters-

(a) space allocated to the cooking,...........of open food;

(b) space allocated to the storage of any kind of open food;

(c) space allocated to the serving of meals to customers;

(d) space allocated to the cleansing................of utensils;

(e) sanity fitments and drainage works;

(f) cloakrooms, passageways and open spaces;

(g).......................................................
............................................................

(i) the siting of all furniture of a substantial and permanent nature, including food manufacturing or preparation plant, cooking ranges, refrigeration or cooling equipment and fixed sideboards, washbasins or sinks, drying racks, water tanks and other like equipment;

.......................................................

(k) space allocated to the thawing of frozen articles of food and to facilities for inspection and sampling of such food."

21. By-law 33 makes it clear that the emphasis of the plan is not just on fittings, fixtures or other building or construction works, but on space for various purposes and the position of substantial items of furniture or other items. In deciding what constitutes an addition to the plan, the wording of by-law 33 must be borne in mind.

22. It is highly arguable, in my view to construe by-law 35 of the Food Business (Urban Council) By-laws in such a way as to include addition of space and addition of substantial furniture as addition to the plan.

23. If this is the correct approach, the placing of metal trays or table of significant size outside a shop premises would be an addition to the plan as it would create more space for the handling or the storage of open food and an equipment had been placed beyond the confines of the plan. Unless permission in writing for such addition was obtained from the Council, such addition would be a breach of the licence and hence an offence under the by-law in question.

24. In support of the conviction, Miss Chan on behalf of the Crown relied on two cases, namely The Queen v. Cheng Chun Yee MA No. 326 of 1991 and The Queen v. Law Shek Po MA No. 133 of 1995.

25. Both cases concern a breach of the licence by addition to the plan. Law Shek Po's case involved the construction of a hatch on the wall near the food lift in the kitchen. Such construction clearly constitute an addition to the plan and to that extent, Law Shek Po's case is not of too much assistance.

26. Cheng Chun Yee's case concerns a licensed restaurant. The restaurant owner placed three tables and fourteen chairs on the pavement outside the restaurant and there was a canvas canopy over the tables. In deciding that the magistrate was wrong in ruling that the restaurant licensee had no case to answer in respect of a charge of permitting addition to the approved plan, Bewley, J. said,

"Having regard to the fact that the declared purpose of the ordinance is to make provision for public health, the magistrate's narrow interpretation of Reg. 34(a) of the Regional Council by-laws is startling to say the least.

If the by-law did not apply to an extension of the business on or from which the food business was carried out, the licensee could avoid control by the licensing authority.

It is, with respect, clearly the intention of the legislation that the business should only be carried on within the confines of the approved plan. That gives the authority control in vital matters affecting health such as plumbing, ventilation etc."

27. I do not argue with the reasoning of Bewley J. although I think the emphasis should be on the addition to the approved plan rather than the extension of the business.

28. If Bewley, J.'s decision in Cheng Chun Yee's case was to be followed, the placing of metal trays and other items outside the appellant's shop would clearly constitute an addition to the plan and the appeal must fail.

29. Unfortunately for the Crown, the Chinese language text of the term "addition" in by-law 35 of the Food Business (Urban Council) By-laws is "增建工程" (Zeng Jian Gong Cheng).

30. The Chinese language text of by-law 35 is as follows:

在任何牌照批出或續期後，除非獲得市政局書面准許，否則持牌人不得安排或准許對牌照所關乎的處所------

（a）進行任何更改或增建工程，而該更改或增建會令該處所與根據第33條獲批准的圖則有重大偏差；

------------------------------------------------------------------------------

31. "增建工程" (Zeng Jian Gong Cheng) plainly means "building additional construction or building works". No one who understands the Chinese language would, by any stretch of the imagination, come to the conclusion that the placing of metal trays and other items in front of the shop would be a "增建工程" (Zeng Jian Gong Cheng).

32. Initially I felt hesitant as to whether the court was entitled to rely on the Chinese language text of the ordinance. Despite the amendment to the Official Languages Ordinance, Chinese is still not allowed to be used in the High Court as language of the Court unless special permission has been granted by the Chief Justice. If the Chinese language is not allowed to be used in the court, how can parties be expected to be able to properly advance argument based on the Chinese language text of the ordinance ?

33. Hong Kong practises bi-lingual legislation. Both the English language text and the Chinese language text of an Ordinance are equally authentic. It is not the English language text which prevails over the Chinese language text nor vice versa. It is the English language text and the Chinese language text of an Ordinance together which make up the legislation enacted by the Legislative Council. In that regard, Section 10B of the Interpretation and General Clauses Ordinance provides :-

"(1) The English language text and the Chinese language text of an Ordinance shall be equally authentic, and the Ordinance shall be construed accordingly.

(2) The provisions of an Ordinance are presumed to have the same meaning in each authentic text.

(3) Where a comparison of the authentic texts of an Ordinance discloses a difference of meaning which the rules of statutory interpretation ordinarily applicable do not resolve, the meaning which best reconciles the texts, having regard to the object and purposes of the Ordinance, shall be adopted."

（1） 條例的中文本和英文本同等真確，解釋條例須以此為依據。

（2） 條例的兩種真確本所載條文，均推定為具有同等意義。

（3） 凡條列的兩種 真確 本在比較下，出現意義 分歧，而引用通常適用的法例釋義規則亦不能解決，則須在考慮條列的目的和作用後，採用最能兼顧和協調兩文本的意義 。

34. Because the Chinese language text of the ordinance is also authetic under the relevant legislation, I come to the conclusion that the court is entitled to refer to the Chinese language text of the ordinance to decide if the offences have been made out even permission had not been obtained from the Chief Justice to use the Chinese language in Court. Counsel were allowed to refer to the Chinese language text of the ordinance although the language of the court remained to be English.

35. In the light of the difference of meaning of the English language text and Chinese language text of by-law 35 of the Food Business (Urban Council) By-laws, I must consider both texts to see if the two texts can be reconciled and if so, what is the interpretation which best reconciles the differences in the two texts, having regard to the object and purposes of the Ordinance.

36. If Bewley J.'s approach in Cheng Chun Yee's case that the declared purpose of the Ordinance in question is to make provision for public health and that a more liberal interpretation is to be adopted, I would have interpreted the term "addition to the plan" in by-law 35 as to include "addition in the form of creating more space and/or placing significant items of furniture of equipment beyond the confines of the approved plan".

37. But such interpretation violates the clear and plain meaning of the Chinese language term of "增建工程" (Zeng Jian Gong Cheng), which is the term used in the Chinese language text of by-law 35.

38. In my view, the English language term of "addition to the plan" is ambiguous and the Chinese language term of "增建工程" (Zeng Jian Gong Cheng) is clear and plain. The Court must reconcile the difference of meaning of the two authentic texts in such a way as to give effect to the authentic text which carries a clear and plain meaning over the one which is ambiguous.

39. I feel unable to follow the decision of Bewley, J. in Cheng Chun Yee's case. Quite apart from the fact that the defendant in the case was not represented, Bewley, J. did not, presumably, have the benefit of the Chinese language text of the by-law in question to assist him in reaching his decision.

40. If I am wrong in my conclusion that the English language text of "addition to the plan" is ambiguous, if the only reasonable interpretation of the term "addition to the plan", in the light of the declared purpose of the ordinance and in the context of the ordinance, is that it should include the addition in the form of space and/or the placing of significant items of furniture of equipment beyond the scope of the approved plan, it would mean that the English language text and the Chinese language text of the by-law in question simply cannot be reconciled.

41. If the two authentic texts cannot be reconciled with one another, the only reasonable step for the court to take is to give effect to the text which favours the appellant.

42. The placing of metal trays and other items outside the appellant's shop at the material time might constitute some other offence such as obstruction. But it simply cannot be "增建工程" (Zeng Jian Gong Cheng). The offences of breach of the licence under by-law 35 of the Food Business (Urban Council) By-laws had not be made out.

43. The appeal must be allowed. The convictions are quashed and the sentences set aside. The fines, if paid, will be returned to the appellant.