R. v. Law Shek Po

HCMA000133/1995

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No. 133 OF 1995

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Coram: The Hon. Mr. Justice Wong in Court

Date of hearing: 24 March 1995

Date of judgment: 20 April 1995

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J U D G M E N T

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1. The appellant was convicted before a magistrate of being the licensee of a restaurant, he, without the permission in writing of the Urban Council, permitted the addition of a hatch on the wall near the food lift in the kitchen on the lower ground floor, constituting a material deviation from the plan approved under By-law 33 Food Business (Urban Council) By-laws, Cap. 132. He was fined $2,000 and ordered to pay costs in the sum of $1,500. He appeals against conviction only.

2. The facts were that the appellant has been the licensee of a restaurant at the ground floor and the lower ground floor at 29 Gage Street, Central, Hong Kong since 28 November 1991. Exhibit P1 is the floor plan of the premises in question and the signature of the appellant appears at the bottom of the plan, who signed as the licensee on 23 October 1991. On 1 March 1994, Yeung Kam-chuen, an acting senior health inspector made a visit to the restaurant to inspect the floor plan. He met the appellant who introduced himself as the licensee. The officer saw a hatch on the wall near the food lift in the kitchen on the lower ground floor. There was a door on the hatch which could be closed. The surface of the door was made of white tiles and when it was closed it had the same colour as the rest of the wall. This officer also testified that if one did not look close enough, one might not notice the hatch. When the door was open, one could see through it to the opposite shop at 31 and 33 Gage Street and through the hatch, one could deliver anything to the lower ground floor and ground floor of Nos. 31 and 33 Gage Street. The appellant was present when the officer noticed the hatch and made no reply when he was asked why there was the hatch. The hatch was not shown on P1 and this officer, who had 19 years of experience of carrying out inspection of this nature, was satisfied that the hatch was a material deviation because it did not appear in P1.

3. PW2, a health inspector gave evidence that she visited the restaurant on 30 November 1993 to inspect food hygiene and to check if there had been any alteration to the premises. She spent about half an hour there and half of the time was used to fill up forms. She could not see the hatch because the wall was obstructed by the lift.

4. The evidence also discloses that no application had been made for the addition of the hatch.

5. A number of grounds of appeal were advanced on behalf of the appellant. Having carefully considered each and everyone of them, I come firmly to the conclusion that none have any substance that would cause me to cast doubt on the correctness of the conviction. The prosecution case is proved by P1 and the evidence of Acting Senior Health Inspector Yeung Kam-chuen, which the magistrate accepted. Once the magistrate accepted the evidence as she was perfectly entitled so to do, the case against the appellant was made out. There is no conflict between the evidence of Officer Yeung and PW2. If the hatch was not shown on the plan when it was approved in November 1991, the only reasonable inference to be drawn from the evidence must be that it was added after the date of the approval of the plan.

6. The appeal is dismissed.

Representation:

Miss Y. Mahomed Sr. C.C. for Crown.

Mr. Chan Chi Hung (M/s Chan & Kong) for the appellant