HKSAR v. MODIC ENTERTAINMENT (HK) COMPANY LTD

HCMA 422/2023

[2025] HKCFI 1736

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 422 OF 2023

(ON APPEAL FROM ESS 15340 OF 2022)

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J U D G M E N T

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1.  The Appellant was convicted after trial before the Magistrate on one count of “conducting licensed activities in public skating rink or open or keep open of the place for the purpose of the skating activities, without a licence issued by the Authority or a public officer authorized by the Authority”, contrary to sections 92A, 92C(2) and 150 of the Public Health and Municipal Services Ordinance, Cap. 132, (“PHMSO”) (“Ordinance”).

2.  The Appellant carried on a business under the name of “Bun’s 2020 Roller Training Centre” in Quarry Bay (“Premises”) on 1 December 2021, which the prosecution says was a “public skating rink (公 眾溜冰場)”, as defined under section 2 of the PHMSO and a licence for its operations was required under section 92A when read together with the Eleventh Schedule to the PHMSO but none had ever been granted.

3.  The only issues at the trial were that:

(i)  whether the “roller skating rink” (as opposed to “ice skating rink”) operated at the Premises fell within the definition of “skating rink”; and

(ii)  whether the “roller skating training centre” operated at the Premises, which allegedly operated on the basis of a “studentship programme” or “time-limit membership” was a “public skating rink”.

The Prosecution’s Case

4.  As briefly summarised by the Respondent, two managers of the Leisure and Cultural Services Department (“LCSD”), Mr Ma (“PW1”) and Mr Lau (“PW2”), visited the Premises on 1 December 2021. They saw at the door of the Premises signs of “Bun’s 2020” and “Skating School”, and “Student-Only” posters. There were also posters about how the Appellant’s business operated, including price lists and information about “Training Course” and “1-Day Experience Course”.

5.  They entered the open door and were approached by the male staff. They told the staff they wanted to roller-skate. The staff asked if they had registered online and filled in a liability waiver form, and to show him proofs.

6.  PW1 and PW2 did neither, and they did not reply to staff. They were nonetheless allowed to enter the Premises, which measured about 1,000 m², and they saw two skating rinks, therein measuring about 450 m² and 100 m² (“Rink A” and “Rink B” respectively). There were about 30 people roller-skating on Rink A and 20 people on Rink B. Around one-third of Rink B was cordoned off with a sign “This area is closed for skating lessons”. PW1 did not recall during his visits, seeing any training sessions going on inside Rink A or Rink B, apart from the cordoned area.

7.  PW1 and PW2 then approached the reception counter. The staff instructed them to fill in a registration form and a liability waiver form online. PW1 found the forms online on his mobile phone, but did not fill them in. Nevertheless, the staff further told them that “Skating by Sessions” was available, which costs $190. PW1 asked the staff if they could enter the Premises without filling in the form, but the answer was no. They then left the reception and went back to the entrance of the Premises where they observed two females entering the Premises, approaching the reception, filling in the registration and liability waiver forms, making payments, obtaining their roller skates, and then entering a Rink A via a gate.

8.  Later, PW1 met other defendants in this case, Ms Choi (“D3”), Mr Lee (“D4”) and Mr Leung (“D5”). Upon enquiry, D4 told PW1 that he was the person in charge of the Premises, which operate as a training centre and people had to register as students and fill in a liability waiver form before entering the rinks. D4 showed PW1 the Appellant’s Business Registration Certificate which specific nature was stated as “Training Centre”. PW1 was then introduced to D3, the person in charge of Alpha Roller Skating School (“D1”), which operate the Premises with the Appellant in partnership. D3 stated she taught roller-skating and showed PW1 10-odd pages of “teaching materials”. Then D5, the person in charge of both D1 and the Appellant, approached PW1 and stated that he had been told through a telephone inquiry with LCSD that no licence was required to operate the Premises as only roller-skating was involved.

9.  According to PW2, although D5’s inquiry could have been taken first by a clerk who would probably have been unable to answer and would have transferred the enquiry to him, he did not recall having ever handled such an enquiry. Nevertheless, PW2 stated that his answer would have been that a licence would be required had the enquiry been answered by him.

The Defence Case

10.  One of the Appellant’s directors and shareholders, Mr Khan (“DW1”), and one of the shareholders, Mr Lo (“DW2”), testified at trial. DW1 said the nature of the Appellant’s business had since 3 August 2021 been stated as a “training centre” in its business registration, and D1 and the Appellant (“D2”) had since 15 September 2021 run the “Roller Skating Training Centre” at the Premises to promote the sport.

11.  D1 was responsible for arranging lessons and its coaches, and the Appellant renting the Premises and operating and managing the business. According to DW1, posters bearing words “Students only” were posted outside the Premises because it was a “training centre”. There were also posters showing the list of coaches and different kinds of lessons available. The larger Rink A and smaller Rink B were for students of different levels of ability, and the cordoned area inside Rink B was for children students.

12.  DW1 also explained that to enrol as a student, one must fill in a “School Membership Application Form”, and also a form titled “Your Details” answering one’s experience in roller skating and medical history. Upon the answers given, they would assess if a person could become a student, and to arrange classes of different levels and suitable coaches for him or her. Except in very special cases, no walk-in student would be entertained because of the limited numbers of students they could take.

13.  DW1 also admitted that “1-Day Experience Course” was also offered, including “30 minutes coaching and 30 minutes free skating”, and that would be monitored by coaches.

14.  DW1 also stated that they might refuse enrolment if a student in a learning environment would be jeopardised by that student. DW2 also saying that for the preparation of the opening of the Premises, DW1 had asked him to make an enquiry whether a licence is required. DW2 then first called “1823”, the government hotline, to make an inquiry, and then be referring to a senior staff of LCSD. The senior staff asked DW2 if an “ice rink” was involved and whether it was on the indoor or outdoor. DW2 replied that floor of the rinks were made of stone or wood and were indoor. The staff then said the licence was not required if no “ice rink” was involved.

15.  In the letter dated 15 December 2022, LCSD replied to the Appellant’s solicitors that they had no record of the alleged telephone inquiry, and that they had not inspected the Premises prior to PW1 and PW2’s inspection, and DW1 did not know about the letter.

Magistrate’s Reasons for Verdict

16.  The Magistrate held that “skating rink”, as defined under section 2 of the PHMSO, encompasses all forms of rinks for “skating”, including the “roller-skating rink” at the Premises, and there is no ambiguity in the language used in the PHMSO.

17.  The Magistrate also accepted the evidence of PW1 and PW2, and also all the defence witnesses, but held that the Premises were operated as a “public skating rink” because the “public”, as defined under section 3 of the Interpretation and General Clauses Ordinance, Cap. 1 (“IGCO”), includes any class of the public, and the definition is applicable to the “public skating rink”.

18.  The applicable test for determining whether a member of the public admitted to roller-skate at the Premises ceased to be a member of the public is as stated in DPP v Vivier [1991] 4 All ER 18 at 24f:

“...do those admitted pass through the screening process for a reason, or on account of some characteristics, personal to themselves? Or are they in truth merely members of the public who are being admitted as such and processed simply so as to make them subject to payment and whatever other conditions the landowner chooses to impose.”

19.  The Magistrate considered that for the “studentship programme”, potential students were only required to fill in an online form to provide personal details, including physical and health conditions. Enrolment based on such scant information could not constitute any “screening” at all. Members of the public were clearly welcome to roller-skate at the Premises if they were willing to comply with the entrance requirements.

20.  As to the “studentship programme”, there were also “time-limited membership” for “Skating by Sessions”, or “1-Day Experience Course”, but the former did not involve joining any lessons or coaching. Such “time-limited membership” could be obtained with mere payment.

21.  Both Prosecution witnesses (PW1 and PW2) were not turned away, although they had not filled in the forms, and they would nonetheless be admitted upon paying $190 for “Skating by Sessions”, by filling in the online forms.

22.  The fact that skaters might be asked to leave the Premises because of their offensive behaviour or that studentship of enrolled students may be suspended for the same reason, does not make the skater cease to be a member of the public because the measures operated only after the skater had been admitted into the Premises if they misbehaved.

23.  The Magistrate therefore concluded that skaters had been admitted to roller-skate at the Premises not because of any characteristic personal to themselves, not only because they wished to skate subject only to registration and payment of fee, and they therefore remained members of the public. As such, the Magistrate found that the Premises had been used as a “public skating rink”, without a licence, and had convicted the Appellants accordingly.

Grounds of Appeal

24.  Mr Tam, counsel for the Appellant, put forward the following grounds of appeal.

25.  Ground 1, the Premises is not a “skating rink” as defined in section 2 of the PHMSO. The Appellant said that the Magistrate erred in finding that the term “skating” encompasses all forms of skating, and that the Chinese term for “skating rink” covers all types of rinks. The Magistrate erred in finding that there was no ambiguity between the English and Chinese translation of “skating” and “skating rink”. The Magistrate solely referred to the definitions of “skating” and “skating rink” as provided by the dictionaries cited by the Prosecution, but ignored the definitions of the dictionaries cited by the Appellant.

26.  The Magistrate also erred in disregarding the definitions of the Chinese-Chinese dictionaries cited by the Appellant, and neither did the Magistrate truly considered the absurdity of including the “roller-skating rink” in the definition of “skating rink” for the purpose of application of regulations 25 and 26, Schedule 1 and 2, Form 3 of the Places of Amusement Regulation, Cap. 132BA (“PAR”). The Magistrate failed to take into account the presumption against interpretations producing absurd, anomalous and illogical results. The Magistrate failed to take into account the principle against doubtful penalisation. The Magistrate ought to have held that it is doubtful whether “skating rink” includes “roller-skating rink”.

27.  The Magistrate failed to take into account the legislative history pertaining the amendment of the Official Languages Ordinance, Cap. 5 (“OLO”) and to consider the rectification effects of the respective sections 4B(2) and (3) of the OLO to alter any “manifest error, omission or inaccuracy”, construction exercise and in the interpretation of the legal meaning of “public skating rink” as “public ice-skating rink” would achieve the rectification effect.

28.  The Magistrate ought to have found against the discrepancy between Chinese and English legislative text. “Skating rink”, “溜冰場”, should be constructed as “ice-skating rink”, and only “ice-skating” is intended to be licensed activity under the PHMSO, but not “roller skating”.

29.  On ground 2, saying that the skating rink is not open to the “public”. Although the Magistrate correctly adopted the definition of the “public” under section 3 of IGCO, the Magistrate erred in finding members of the public are welcome to come into the skating rink insofar as it complies with the “entrance requirements”. There is no sufficient weight given on the relevant documentary evidence which demonstrates the Premises is only a training centre.

30.  The Magistrate, although finding that DW1 an honest witness, only put limited weight attached to his oral evidence including the screening and enrolment process, and the mode of conducting training courses in the Premises.

31.  Regarding the screening and enrolment process, the Magistrate erred in disregarding DW1’s oral evidence that there are multiple practical purposes for holistic courses to ensure the condition of the students is suitable for taking training courses, to match students with suitable coaches, and to use the personal details to purchase safety insurance for the enrolment. The Magistrate failed to take into account these purposes and found the public are welcome to get registered, then can get a rubber stamp simply by complying with the registration process and enter the Premises without any discrimination.

32.  Turning to the mode of conducting training courses, the Magistrate also erred in disregarding DW1’s evidence that the Rink A is only for students who are more experienced, and there is also a lesson for children aged 4 and above; Rink B is cordoned off to ensure their safety.

33.  Also, on “1-Day Experience Courses”, the coaches will first teach the basics of roller-skating before the students can practice there, and there are coaches in both rinks to monitor the students. Taking into account all the above findings, this is not a case whether to say that the people who enter the Premises can “skate freely as they wish”. The Magistrate ought to have found that the Premises only allow registered students to enrol, and no “class of public” had the unrestricted right of entry and the opportunity to roller-skate in the Premises freely. The Magistrate erred in arriving at the conclusion that the advance screening process adopted by the Premises does not segregate members of the public.

34.  Lastly, although the Magistrate recognised that DW2 had in fact made inquiry regarding the licensing requirement, and received an uncertain or wrong response from LCSD staff, the Magistrate ought to have held the uncertainty, or uncertain, or wrong answer, provided by the staff was due to apparent confusion and ambiguity in the law regarding whether the Premises qualified as a “skating rink”, or even a “public skating rink”, thus required any licensing.

35.  Based on all the above submissions, the appeal shall be allowed.

36.  In the further written detailed submissions, on ground 1, the Appellant further quoted the definition from the dictionaries:

Dictionary	Word	Definition/Translation
Modern Han Language Word Dictionary, 2018 (現代漢語詞典)	溜冰	在冰上滑行
Commercial New Worlds Dictionary, 2018 (商務新詞典)	溜冰	穿冰鞋在冰上滑行

37.  The Appellant also further relied on the Places of Amusement Regulation, the PAR, which is a subsidiary legislation of PHMSO. The regulation of PAR will be an internal aid to assist in construing the meaning of “skating”, but the Magistrate did not construe the phrase “skating rink” in light of the said principle and find no absurdity is produced.

38.  Concerning the “rectification effect”, the Appellant further pointed out that at the time when the Chinese text of PHMSO was considered the section 4B(2) and (3) of the OLO were not repealed. The two subsections allowed the governor to correct anything that was a “manifest error, omission, or inaccuracy” in the authentic text before gazetting it, allowing the Attorney General to make minor alterations to the text of an ordinance to achieve harmony without changing the meaning of the words.

39.  In the light of the above history, the Chinese text of section 2 of PHMSO must have achieved the “rectification effect” to cure the inaccuracies embedded in the English text. It is submitted that the Chinese text, “溜冰場” to include “滾軸溜冰場” is “manifestly wrong” and “inaccurate” by virtue of the above ordinance, and the accurate interpretation of “skating rink” should be “ice skating rink” (“溜冰場”, should be interpreted as “冰上溜冰場”). This interpretation can be supported by the translation of “溜冰場” as “ice-skating rink”, and so in the Official Record of Proceedings of the Hong Kong Legislative Council as submitted.

40.  The Appellant further relied on the case of Pepper v Hart [1993] AC 593, the House of Lords held that the Court can accept parliamentary materials where:

(a)  legislation is ambiguous or obscure, or leads to an absurdity;

(b)  the material relied upon consists of one or more statements by a Minister or other promoter of the Bill together if necessary with such other Parliamentary materials as is necessary to understand such statements and their effect; and

(c)  the statements relied upon are clear.

41.  Therefore, the Appellant can simply referring to the reply from the Secretary for Planning, Environment and Lands on the assumption that the skating rink referred to the “ice skating rink” only because it refers to ice skating rink, with ice as its surface only. It could not be stretched to encompass “roller-skating rink” as such.

42.  As to the second ground concerning the “skating rink” is not open to the “public”, the Appellant said that the Magistrate did not attach sufficient weight to the various documentary evidences, including the Business Registration Certificate, the posters evidencing the roller skating training courses and schedule, coach profiles, “Students Only” sign, substantive content of the registration form, the disclaimer and the waiver form. So there are sufficient screening and enrolment requirement instead of allowing all the public to go in and to skate there. The factual finding is that “any class of public” can simply enter the Premises is not proper in the circumstances.

43.  The Appellant also referred to the case of R v Edwards [1978] 67 CAR 228 stated that:

“… members of the public have an implied licence to pass through those private gardens in order to obtain access to the front doors of private the premises if they have some lawful occasion to do so … it is certainly only by permission of the owner, occupier or lessee of the premises that persons obtaining access to front doors in the manner referred to are entitled to access.”

44.  In R v Lam Shing Chow [1985] 1 HKC 162, it was stated that the legal right to access does not arise from being members, solely by virtue of the status of licensees and invitees of the occupiers.

45.  In William v DPP [1992] 95 Cr App R 415 concerning the common parts of the building access to which was controlled by the installation of a locker door and intercom is to restrict entry to residents, visitors and tradesmen and others were there in a private capacity, not members of the general public.

46.  In 香港特別行政區v 甄霈霖 [2023] 4 HKC 338, the judge held that one of the essential considerations of whether a place was a public place was whether persons who had access were permitted to have access as members of the public or as persons in a specifically private capacity. Lawful visitors would not turn the place into a public place. A public place must be the one that allows access by members of the public as members of the public, not as persons in their private capacity.

47.  The Appellate concluded that the Premises is not a “public place”, but taking into account the ones who enter the skating premises are in the capacity of students, the staff could refuse the students from going in, and also joining the training lessons and so students have access to the Premises only as lawful visitors, not as a member of the public. There have been sufficient screening process to limit all those people who want to go into their Premises.

48.  All in all, it does not satisfy the definition of “public place” in the circumstances.

Respondent’s reply

49.  First, section 2 of the PHMSO defines “public skating rink” as follows:

“public skating rink (公眾溜冰場) means any place opened, kept or used for the purpose of skating to which the public are admitted with or without payment for admission unless such place is a place of public entertainment licensed as such under the Places of Public Entertainment Ordinance (Cap 172).”

50.  The Respondent stated the legislative history of the ordinance. In 1933, the Miscellaneous Licences Ordinance (“MLO”), was enacted to provide that:

“No person shall open or keep any place, or conduct any trade, business or occupation specified in the First Schedule except under and in accordance with licence issue under this Ordinance.”

At that time, “public skating rink” was not included in the First Schedule. It was only in 1947, public skating rink was firstly added, but without any Chinese translation.

51.  The MLO was also amended in 1947 by addition of “Part XI - Public Skating Rink” (“Part XI”) to its Second Schedule, which included provisions prescribing measures required for safeguarding public health, fire safety and public order to be implemented in the licensed “public skating rink”. The “Objects and Reasons” for the amendment were stated as “… to provide for the control, supervision, and licensing of … public skating rink”.

52.  Although the definition of “public skating rink” under MLO had no Chinese translation to phrase, “特許溜冰場” was used in a prescribed sign which was required to be exhibited at the rink. See section 2 of Part (XI),

“Every person licensed to keep a public skating rink shall exhibit and keep exhibited the words ‘Licence for skating’ in English and in Chinese characters, “特許溜冰場”, in some conspicuous place near the door and on the outside of the premise to the satisfaction of the licensing authority.”

53.  In 1973, the entire regime for regulating the “public skating rink” with licence was migrated from MLO to the PHMSO with the provision prescribing measures requiring for safeguarding the public health, public safety, and public order to be implemented in the licensed “public skating rink”, as set out under section 92B of the PHMSO, particularly paragraph (e) to (h) concerning the lighting, the precaution against fire, the maintenance of peace and good order, and also the means of securing hygienic conditions, and so forth.

54.  In 1988, in moving the amendment, the Respondent said that in moving amendment to replace “public billiard – saloon” with “billiard establishment” under Eleventh Schedule, to which “public skating rinks belongs, the Authority explained the significance of the licensing regime to safeguard public health and safety.

“The objectives of licensing are to ensure that the premises used for the business are structurally safe, hygienic, and that fire, and law and order standards are satisfactorily maintained. A licence will normally be issued is considered a fit person by the authority after consultation with Police and premises are suitable…”

55.  Concerning the “skating-rink”, in section 2 of the PHMSO, encompasses all forms of skating activities. The Respondent said that the “public skating rink (公眾溜冰場)”, is defined to mean “any place open, kept, or used for the purpose of skating to which the public are admitted with or without payment.” (指為進行溜冰而開設、經營或使用的地方, 而不論是否收取入場費, 公眾是獲准入場的...)

56.  The Respondent said that it is apparent that although the word “冰(ice)”, appears in the Chinese version of the word “skating (溜冰)” in the definition, the definition has not defined the word “skating” to mean only “ice-skating”, but not “roller-skating”. Instead of defining “public skating rink(公眾溜冰場)”, as a rink of “make of ice”, it is the purpose of the rink for “activity of skating” that makes the rink liable for licensing. It is therefore submitted that in a strict senses, the word “skating” in Chinese should be “溜”or “滑” rather than “溜冰”. In any event, the Respondent submitted that the legislation has always intended that the word “skating” and “溜冰” means to include all forms of skating activities including, in the present case, “ice-skating” and “roller-skating”.

57.  Also, according to the Oxford English Dictionary, “skate” is defined to include “ice-skating” and “roller-skating”. In The New Encyclopaedia Britannica, 15^th Edition, Volume 10, “roller-skating” is not a modern invention. It can be dated back to 1863. The same publication also defines “skate” to include “ice-skating” and “roller-skating”.

58.  《現代漢語詞典》, cited by the Appellant, “溜冰” defined to mean “滑冰”only; whereas “滑冰” is defined to mean (1) “穿著冰鞋在冰上滑行… (2) 泛指在冰上滑行”. However, the Respondent said that in 1999 Edition of the same publication “溜冰” was defined to include both “ice- skating” and “roller-skating.《現代漢語規範詞典》similar definitions can be found, and 《現代漢語詞典(繁體版)》, “溜冰” remains to be defined to include both “ice-skating” and “roller-skating”.

59.  Also “roller-skate” had also been defined in 《英華大詞典》 (2001) as “四輪滑行鞋, “溜冰鞋”;《遠東英漢大辭典》(1985) and《現代英漢詞典》(1995) as “輪式滑冰”; 《英漢大詞典》(2000) as “四輪溜冰”; 《英漢辭海》 (1988) as “四輪滑冰”. It is therefore clear that although “冰”　is used in “ice” in the exact definition, “roller-skate” clearly refers to “skating” on hard surfaces other than made of “ice”. In particular, 《英漢辭海》(1988) noted that “四輪滑冰鞋,鞋底不是冰刀而是小輪子; 不是在冰上, 而是在硬地面上滑.” So it is submitted that despite the use of the word “冰” in the various dictionary definitions of “溜冰”and “roller-skate”, “溜冰”, in linguistic use throughout the years, (perhaps as early as 1947 and when MLO was amended to include “public skating rink公眾溜冰場” in the licensing regime), has been meant to include both “ice-skating” and “roller-skating”.

60.  As such, it is submitted that the Magistrate’s finding to the likely effect is clearly correct.

61.  More importantly, the Respondent submitted that the purpose of legislation is to subject all activities of “skating”. Pursuant to section 19 of IGCO,

“19. General principles of interpretation

An ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit. ”

62.  In the present case, the Appellant’s business at the Premises is clearly of considerable scale capable of attracting patronage of a large number of members of the public.

63.  The Respondent submitted the Appellant’s contention that public roller-skating rink should not be subjected to the licensing regime under the PHMSO appears to defy the clear legislative intent to the contrary.

64.  As to the absurdity interpreting “skating rink” to include both “ice-skating rink” and “roller-skating rink”, the Respondent submitted that the alleged “absurdity result” is clearly misguided because “skating rink” clearly should be interpreted to include both “ice-skating” and “roller-skating” by exhibiting the words “Licensed for skating” and “特許溜冰場” at its Premises, even if only “roller-skating” is available at its Premises.

65.  Concerning the Chinese text, “溜冰場”　does not seek to rectify any mistake in the English text “skating rink”. The Respondent firstly submitted that when the Ordinance first enacted, although the PHMSO (in 1973) and its predecessor MLO (in 1947) were not accompanied by any Chinese text, it is noted about the Chinese text of “特許溜冰場” had been used to accompany the English text “Licence for skating” which should be exhibited at the premises of the licensing skating rink as a requirement under the MLO. As such it was not the case that the Chinese text “溜冰場” was only introduced in 1996.

66.  Secondly, as section 4B(2) of the OLO provides only that the Governor in Council might, by order in the Gazette, correct any “manifest error, omission or inaccuracy”, he could not use section 4B(2) to correct such errors in the original text of the Ordinance by gazetting the translated text as the Judge in HKSAR v Tam Yuk Ha [1997] HKLRD 1031, 1035F stated that,

“The Chinese language text could not have been intended to be remedial of the English language text. Any rectification would have to be effected by an amendment, not by the other language text.”

67.  Also in HKSAR v Chan Chun Kit [2022] 25 HKCFAR 191 stated that,

“Moreover one cannot ascribe to the legislation an intention to effect any change in the meaning of the original English text merely by reason of the Chinese translation.”

68.  Thirdly, the alleged mistake in the Chinese text “溜冰場” in the English text “skating rink” does not exist as both are capable and meant to cover both “ice-skating” and “roller-skating”.

69.  Referring to the speech of the Secretary for Planning, Environment and Lands, the Respondent would say that, firstly, the Secretary’s speech made reference to “溜冰場” only because the subject under discussion was about the use of “ice surfacers”. Secondly, the Secretary did not say that “溜冰場”means only “ice-skating rink”. Thirdly, the Secretary was not asked to express any view on the interpretation of “溜冰場”.

70.  Concerning the rule against doubtful penalisation, the Respondent said that it was simply not engaged because there is nothing ambiguous in either the English or Chinese version of the words “skating rink” or“溜冰場”.

71.  The Respondent further said that even if the statutory provision is ambiguous, unclear, or open to reasonable interpretations, it has been well established in Hong Kong that pursuant to section 10B(3) of IGCO, the Court must take into account the object and purposes of the statute and adopt the one which best reconciles the text.

“Section 10B - Construction of Ordinances in both official languages

(3) Where a comparison of the authentic text 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 text having regard to the object and purposes of the Ordinance, shall be adopted.”

72.  In HKSAR v Tse Yee Ping [2016] 19 HKCFAR 427, it stated that,

“It is merely a reason (although not always a decisive one) for giving the definition the narrower meaning, when it is, on a fair reading, otherwise equally capable of having a wider or narrower meaning.”

73.  In Chan Pun Chung & Another v HKSAR [2000] 3 HKCFAR 392, the Court of Final Appeal applied section 19 of the IGCO and held that an ordinance should receive a fair, large and liberal construction and interpretation as best ensured the attainment of the object of the ordinance according to its true intent, meaning, and spirit.

74.  Concerning DW2’s belief that the law was ambiguous because of the alleged answer of the unidentified LCSD staff, the Respondent submitted that even if DW2’s personal belief was honest, it is not a defence to the charge laid against the Appellant because upon a proper construction of the offence in question, the requisite mens rea for the offence does not include knowledge that it was wrongful, and the prosecution does not have to prove that the Appellant’s view is wrong.

75.  It is also submitted that as a matter of construction, the requisite mens rea for the section 92A(a) offence under consideration in the present case did not include knowledge that it was wrongful.

76.  Regarding the offence under consideration in the present case, there is likewise no mention of common words of criminal intention like “knowingly”, “intentionally”, or “recklessly”.

77.  Also, the mandatory language by use of the word “shall” appears, which suggests that the nature of the offence created is “regulatory”. It concerns licensing of activities open to the public with a view to protecting their safety and health.

78.  DW2’s alleged belief, even if true, that the law was ambiguous is not a defence to the charge laid against the Appellant, although it may constitute a mitigating factor.

79.  Concerning ground 2, the Respondent said that relying on the Jockey Club Kau Sai Chau Public Golf Course Limited v HKSAR [2013] 16 HKCFAR 908 that, “The question of whether a place is one to which the public have access … is largely a matter of fact and degree but it is a question of law in any case whether the facts are sufficient to support a particular conclusion.”

80.  In the HKSAR v Wong Yiu Wah & Others [2002] 1 HKC 527, as affirmed and on appeal to CFA [2001] 4 HKCFAR 347, “… so long as the Club is open for business, inviting the public to enter, it is a place to which the public are permitted to have access and therefore a public place. It matters not whether they were admitted by the occupier as licensees or invitees. It also matters not whether this occupier have power to refuse entry because the premises was full or because of any reason …”

81.  In Glenn v Simmons [1952] 2 All ER 47, 48A-C, “A place does not cease to be a place of public resort because the public have to pay to go there … [even if] a person has been warned off, or any other undesirable character, will not be allowed into [the place] … I cannot see that property to which the owner invites the public to resort becomes any the less a place of public resort because he refuses to allow a particular individual or individuals to enter …”

82.  In the above Jockey Club Kau Sai Chau Public Golf Course Limited case, it held that “The fact that having a particular golf handicap may be required to play on any of the three golf courses does not mean that they enter for any purposes other than their own purposes and in their capacity as a members of the public. They are not there to exercise their rights or privileges as a member of a private club.”

83.  In Charter & Ors v Race Relations Board [1973] AC 868(HL), the text also expounded in Panama (Piccadilly) Limited v Newbury, “The essential feature is that there should be a genuine screening at some stage a pledge of general acceptability to fellow members. It is this screening that determines that membership is a private role. Without it the association remains a section of the public.”

84.  So the Magistrate’s finding that the Premises were operated as a “public skating rink” cannot be faulted, particularly the Respondent saying that the Premises were operated as a business with members of the public being invited. The screening scheme based on potential student’s capability and ability served the only purpose of ensuring effective use of the Appellant’s resources, but not for selecting the students on account of some characteristics personal to themselves to the exclusion of others.

85.  And that, according to the Jockey Club Kau Sai Chau case, the possibility that some potential students may be excluded for reasons of their health issues or physical disabilities does not render those enrolled to cease to be members of the public. For the “time-limited membership”, members of the public enrolled remain members of the public because they were not enrolled on account of characteristics personal to themselves to the exclusion of others.

86.  In any event, it is submitted that whoever admitted to stay at the Premises were not admitted because they had been screened as a part of general acceptability to fellow members. And even if the skater were enrolled because of them having qualified themselves to roller-skate at the Premises, they were nonetheless a part of the public.

87.  Also the fact that skaters admitted into the Premises might be asked to leave the Premises because of their offensive behaviour, do not make the “public skating rink” at the Premises less public.

88.  Whether a “studentship programme”, or “time-limited membership” base, were admitted on account of any reasons of characteristics personal to themselves, but rather simply because they wished to roller-skate and were prepared to satisfy the conditions imposed on them for admission and the fondness of roller-skating cannot make them as public at all.

89.  On the supplemental skeleton submissions by the Appellant, the Appellant further relied on the Chinese-Chinese dictionaries, saying that it appears that the different publishers have provided their own respective definition for the word “溜冰”. This showed that the word “溜冰”can either be defined as “ice-skating” only, or both “ice-skating” and “roller-skating”. So at least the Chinese dictionary showed that the wording “skating” can be interpreted in both ways under the PHMSO.

90.  If the definition of “溜冰”is clear enough to be interpreted as “roller-skating”, there is no reason why dictionary publishers would add the adjective on between “滑” and “冰”to distinguish between “ice-skating” and “roller-skating”.

91.  Further, if the word “roller-skate” can be clearly represented as the word “溜冰”, there is no reason why dictionary publishers would include descriptive adjectives such as “四輪”or, and/or “輪式”to distinguish between “ice-skate” and “roller-skate”.

92.  The Appellant said that this is therefore a quantum leap for the Respondent to suggest that the word “溜冰”has been meant to include both “ice-skating” and “roller-skating”.

93.  The Appellant further said that the Respondent’s assertion that the purpose of the Ordinance is “to subject all activities of ‘skating’ for the public to the licensing regime” is unsupported by the legislative history of the Ordinance, which did not show any sign as to whether the world’s “public skating rink” encompassed roller skating rinks only, or ice skating rinks only, or both.

94.  Further, the Appellant also relied on the PW2’s evidence that “[a] roller-skating rink should need a skating licence” is self-serving. Even the retired LCSD manager, like PW2, failed to answer the question affirmatively, it is reasonable to suggest that other staff, including the person who laid the information against the Appellant, might have been confused about the ambit of the offence creating the allegations. So PW2’s evidence reinforced the ambiguity in this statute.

95.  On ground 2, the Appellant reiterated that there is a genuine screening process embarked upon by the training centre, and it was not simply a verbal stamp to go through the process.

96.  The enrolment process can effectively distinguish the nature of the roller-skating training centre, and other public ice-skating rinks, and they can only roller-skate if they satisfy the selection requirement, that would include characteristics personal to the student himself/herself concerning the special educational needs, the personal physical condition, and so forth.

97.  There is no suggestion that the screening and enrolment process is a sham. Anyone can apply on the mode of entry is a mere formality. It was not such a case.

98.  All in all, there is no direct evidence to demonstrate that the roller-skating rink at the Premises is public in nature. So the appeal shall be allowed in the circumstances.

Considerations

99.  In the Court of Final Appeal case HKSAR v Hiu Lai Ki [2024] HKCFA 7, it was held that the Magistracy Appeal is conducted by way of rehearing. The judge must be satisfied that the appellant’s guilt has been proved beyond reasonable doubt on the evidence, failing which the appeal must be allowed. On such rehearing, if the judge comes to a different view on the evidence before the court, that itself is an error which justified appellate intervention to reverse the decision of the magistrate to convict.

100.  The Court recognised that an appellant court conducting a rehearing would be subject to limitations arising from the fact that it does not have the advantage of receiving witness evidence first-hand. Hence, it must exercise caution when considering findings of fact based on oral testimony. Yet, despite those limitations it remains the duty of the appellate court on appeal by way of rehearing to come to its own conclusion on disputed issues of fact or law.

101.  Firstly, I had the opportunity to go through all the photos, P7 (1 - 34), showing the general background, all the relevant posters, the actual scene of the skating rinks, plus the lessons, details, and also the enrolment form, which would certainly assist the Court to understand the whole picture for the purpose of rehearing.

102.  On ground 1, it essentially concerns whether the wording of the relevant section, “skating rink” also includes roller-skating. Particularly, the Appellant also contended in Chinese, “溜冰場”, shall only mean “skating on ice” but not “roller-skating” in the present case.

103.  Having read and gone through all the submissions by both parties, I have the following findings:

(i)  Section 2 of the Ordinance only mentioned for the purpose of skating. It does not separate ice-skating or roller-skating.

(ii)  From the legislative history, the regime of licensing public skating rink was for the purpose of safeguarding public health, public safety and public order. It also does not make any difference on “ice-skating” or “roller-skating”.

(iii)  The wording in the legislation clearly confines to all activities of skating, instead of making difference on different forms of skating.

(iv)  On dictionary meaning, “溜冰”does not only limit to “skating on ice”. “Roller-skating” is translated as “滾軸溜冰.

(v)  The requirement of exhibiting licence for skating (“特許溜冰場”) includes both “ice-skating” and “roller-skating”.

(vi)  The Chinese text“溜冰場”was only introduced in 1996, well after the English legislation. Chinese text could not have been intended to be remedial of the English language text, as seen in the above HKSAR v Tam Yuk Ha case.

(vii)  The reference to the speech of the Secretary for Planning, Environment and Lands was neither here nor there as it only in answering the query concerning the nitrogen dioxide emission on ice-skating rink, it could not be interpreted that “溜冰場”only means “ice-skating” but not “roller-skating”.

(ix)  Doubtful penalisation was not engaged as the statutory provision is not ambiguous nor unclear.

(x)  The legislative intent is no doubt in regulating all activities of public skating. It would not make any sense on making different treatment on “ice-skating” or “roller- skating”.

(xi)  The person’s own belief or ambiguity on interpretation is no defence to the charge but just constitute mitigating factors.

104.  All in all, the Magistrate’s finding that under section 2 of the PHMSO, “skating rink” encompasses all forms of skating, including roller-skating rink in the present case cannot be faulted. So ground 1 of the appeal fails.

105.  On ground 2, concerning whether it was a public skating rink, I find the following:

(i)  Under section 3 of the Interpretation and General Clauses Ordinance, Cap. 1, “public” includes any class of the public.

(ii)  As in the case of DPP v Vivier stated above, one had to consider do those admitted pass through the screening process for a reason or on account of some characteristic, personal to themselves.

(iii)  Clearly, the so-called “student programme”, or “1-Day Experience”, were not on account of personal characteristic but could just be obtained through mere payment.

(iv)  As referring to the case of Jockey Club Kau Sai Chau Public Golf Course Limited, whether a place when public have access is largely a matter of fact and degree.

(v)  Even if a student had to show student card, or one has to fill in personal experience and level of skill of skating, does not mean they enter the Premises other than in capacity as member of the public. They are not there to exercise the right and privilege as member of a public club.

(vi)  No doubt, the Premises was operated as a business, inviting all members of the public to join, not on account of personal characteristic to the exclusion of others.

106.  Therefore, I also agree the Magistrate’s finding that the Premises has been used as a public skating rink which requires a licence, without which the Appellant was convicted beyond all reasonable doubt.

107.  Therefore, the appeal is dismissed accordingly.