Chan Tam Wong v. R.

HCMA000899/1996

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 899 OF 1996

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Coram: The Hon. Mr. Justice Wong in Court

Date of Hearing: 17 October 1996

Date of Handing Down of Judgment: 15 November 1996

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J U D G M E N T

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1. The appellant was at the material time the licensee of the Peking Billiard Establishment at Nos. 12-18, 1 and 2 Floors, Mei Wah Building, Wan Tau Street, Tai Po, New Territories. He was convicted after trial before a magistrate on a summons of permitting a person under the age of 16 to enter the premises between the hours of 8.00 p.m. and 10.00 a.m. without the permission of the Regional Council in writing contrary to By-laws 22C(a) of Places of Amusement (Regional Council) By-laws made under the Public Health and Municipal Services Ordinance, Cap. 132. He was fined $3,000 and ordered to pay $2,000 costs. He appeals against conviction.

2. By-law 22C provides:

"Unless expressly permitted by the Council in writing, the licensee of a billiard establishment shall not -

(a) permit any person under the age of 16 years to enter the licensed premises between the hours of 8.00 p.m. and 10.00 a.m.; or

(b) permit any person in school uniform, whether in full or in part, or whether wholly or partly covered, to enter the licensed premises at any time during the business hours of the licensed premises."

3. The facts were that at about 10 p.m. on 10th November 1995, Chan Wing-shan, a girl who was born on 11th January, 1980, went with four males to the billiard establishment of which the appellant was the licensee. She was standing beside the male who make the booking while the booking was processed. During this time, no one asked for her age or identity card. A licence check later by the police revealed the offence.

4. The magistrate considered the decision of the Privy Council in Gammon Ltd. v. Attorney General of Hong Kong [1985] 1 A.C.1 and found the appellant guilty on the basis that the offence was one of strict liability.

5. The main thrust of this appeal is whether By-law 22C(a) creates an offence of strict liability. In addition to Gammon on which both sides heavily relied, but for different purposes, a number of other decisions were cited in argument. It is not necessary to deal with all of them save to mention a few. The Court of Appeal held in both R. v. The King Capital Club Co. Ltd. & Others [1991] 1 HKLR 88 and Attorney General v. Mak Chuen Hing & Others, Magistracy Appeal No. 398 of 1996 that s. 6 of the Gambling Ordinance, Cap. 148 created an offence of strict liability. When the same Court, differently constituted, was called upon to consider a number of offences under ss. 17 and 46 of the Dutiable Commodities Ordinance (Cap 109) in Attorney General v. Fong Chin Yue & Others [1995] 1 HKLR 21, it came to the conclusion that the four offences were strict liability offences but not truly criminal in character. Kwok Hung-fai & Others v. R. [1982] HKLR 453 is an earlier decision of the Court of Appeal dealing with offences under Regulations 30(b) and 32(b) of the Miscellaneous Licences Regulations which prohibited massage or other treatment except between the hours of 8 a.m. and 8 p.m. and treatment of male persons by female persons or vice versa. It was held that mens rea in an extended sense was a necessary ingredient in the proof of an offence under both regulations. That was to say, where the licensee had not personally performed or supervised the forbidden act, there must be evidence of delegation sufficient to show that effective control of the massage establishment had been put by the licensee in the hands of his delegate and that such control could reasonably be interpreted as extending to all such acts of the delegate as would be within the scope of the licensed activity whether lawfully performed or not, per McMullin, V.-P. R. v. Leung Yi Mei and Mok Woon Magistracy Appeal Nos. 300 and 301 of 1995 is a decision of some interest. Duff, J. held that s. 19 of the Amusement Game Centres Ordinance, Cap. 435 did not create an offence of strict liability. A boy under 16 was found in a game centre which had a licence as an adult centre. This meant that no one under the age of 16 could lawfully be on the premises. To put the matter in proper prospective, it is necessary to set out the relevant section which is section 19:

"19. Offences in relation to a licence

(1) Any person who on any occasion -

(a) operates, keeps, manages or otherwise has control of a licensed amusement game centre in contravention of any condition of the licence; or

(b) in any capacity assists, either directly or indirectly, in the operation, keeping, management or other control of a licensed amusement game centre in contravention of any condition of the licence,
commits an offence.

(2) Where an offence under subsection (1)(a) is alleged to have been committed, any evidence which proves that a defendant did any act in connection with the operation, keeping, management or other control of a licensed amusement game centre is, in the absence of any evidence which proves that the defendant did not operate, keep, manage or otherwise have control of a licensed amusement game centre, proof that the defendant operated, kept, managed or otherwise had control of a licensed amusement game centre.

(3) Where a condition of a licence is contravened the licensee commits an offence unless he proves that -

(a) he did not know and had no reason to suspect the existence of the circumstances giving rise to the contravention; and

(b) he could not, by the exercise of reasonable supervision and reasonable diligence, have prevented those circumstances arising."

It must be noted that ss. 3 specifically provides a defence which By-law 22C does not so provide. Duff, J. also contrasted s. 19 with s. 4 which is an offence of strict liability to operate, keep, manage or otherwise have control of an amusement game centre without a licence.

6. Dealing with this appeal, I must ask myself whether this case meets the test laid down in Gammon, bearing particularly in mind the presumption of law that mens rea is required before a person can be held guilty of a criminal offence. The object of the legislation and therefore the intention of the legislature is to protect young persons and to promote their social, physical and educational well-being. To allow them to be in places like billiard establishments where adults of different background and character frequent would run counter to this objective. By-law 22C(b) which bans persons in school uniform to enter billiard establishment at any time is a good example of this legislative intent. In delivering the judgment of the Court in The King Capital Club, Jones, J. had this to say:

"We agree with Mr. Reading, who appeared for the Crown, that the legislature deliberately omitted the word 'knowing' or 'knowingly' from s. 6 having regard to the conditions prevailing here. In our view strict liability effectively promotes the objects of the legislation."

The social, physical and educational well-being of young persons and school children is a matter of great social concern and the creation of strict liability will no doubt be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act.

7. In my view, By-law 22C(a) creates an offence of strict liability.

8. This is sufficient to dispose of the appeal and it is not necessary for me to deal with the submission that there was no evidence to show delegation of effective control by the appellant. By-law 22C is plain ... the licensee shall not permit ... It imposes a positive duty on the licensee which he cannot delegate. The licensee is responsible for all acts committed either by himself or by his employees.

9. The appeal is dismissed.

Representation:

Ms. Maggie Yang, S.C.C. for the Crown.

Mr. Francis Yim of M/s Francis Yim & Co. for the appellant.