HKSAR v. Modic Entertainment (HK) Company Ltd

HCMA 422/2023

[2025] HKCFI 5630

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 Applicant 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 authorised by the Authority”, contrary to section 92A, 92C(2) and 150 of the Public Health and Municipal Services Ordinance, Cap. 132 (“PHMSO” or “Ordinance”).

2.The Applicant 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”.

4.The Applicant appealed against conviction, the appeal was dismissed by me, details of which could be referred to the judgment dated 21 March 2025, where essentially I held that:

(i)  “Public skating rink” under section 2 of the PHMSO encompasses all forms of rinks for “skating”, including both “ice” and “roller” skating rinks; and

(ii)  The Premises, “Bun’s 2020 Roller Training Centre”, operated by the Applicant was a “public skating rink”, which required a licence.

5.The Applicant filed a Notice of Motion to apply for a Certificate under section 32(2) of the Hong Kong Court of Final Appeal Ordinance Cap. 484 that points of law of great and general importance are involved as follows:

(i)  Whether the term “public skating rink (公眾溜冰場) ” as defined in section 2 of the PHMSO means any place opened, kept or used for the purpose of both roller skating and ice skating or only for the purpose of ice skating (“Point 1”); and

(ii)  To what extent should a screening scheme at a skating rink consider the characteristics personal to the skaters therein and then restrict access based on those characteristics, so as to change the character of those skaters from skaters qua members of the “public”, as defined under section 3 of the Interpretation and General Clauses Ordinance, Cap. 1 (“IGCO”), to skaters qua enrolled students, therefore excluding a skating rink from the ambit of a “public skating rink” under section 2 of the PHMSO (“Point 2”).

The Applicant’s Submissions

6.Mr Tam in his detailed written submissions, essentially saying that, concerning Point 1, the Court of Final Appeal (“CFA”) repeatedly held that the court adopts purposive approach in statutory interpretation. This required the: (i) examination of the legislative history of the PHMSO to ascertain its legislative intent; (ii) detailed analysis of definitions of the word “skating” and “溜冰” in Chinese‑English and English-Chinese dictionaries; and (iii) application of the relevant canons of statutory interpretation.

7.The Applicant submits that the trial Magistrate only considered the English or English-Chinese dictionaries cited by the Respondent and overlooked the Chinese-Chinese dictionary cited by the Applicant. And there is still a clear inconsistency between the definitions of the English word “skating” and Chinese word “溜冰”. Further, the Applicant called into question the Respondent’s assertion that the purpose of PHMSO is “to subject all activities of skating for the public to the licensing regime”.

8.There is clearly a real controversy as to the correctness of the interpretation. So the Applicant submits that the interpretative guidance from the CFA on the term “public skating rink” as defined in section 2 of the PHMSO will have a deep and far‑reaching public impact in creating provisions sections 92A, 92C(2), and 152 of the PHMSO. The Applicant and/or other roller skating rink operators will benefit from legal certainty the sooner the CFA renders definitive guidance on the term “public skating rink”.

9.On Point 2, Mr Tam submits that Point 2 is about the correct approach of determining whether a group of individuals constitutes “any class of the public”, thereby coming within the definition of “public” under section 3 of the IGCO. The Applicant submits that the CFA has yet to render authoritative guidance in this aspect. However, the CFA in the Jockey Club Kau Sai Chau Public Golf Course Ltd v HKSAR (“Kau Sai Chau”) (2013) 16 HKCFAR 908 case is only premised on the true construction of the words “road” and “motor vehicle” under the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap. 272. However, as to how to determine what constitutes a “class of the public” under section 3 of the IGCO, even if the lower court was correct to say that this depends on the circumstances of individual cases, the CFA would not endorse the lower court’s approach of looking to factors such as size of the class, nature and difficulty of the qualification required to become a member of it and a degree of control over how the qualification is obtained. It was therefore not necessary for the CFA to resolve the said certified question.

10.However, the current state of the law has prompted a need for guidance from the CFA regarding the correct approach to determine a “class of public”. So this point is reasonably arguable.　The CFA can form a different view on the selection requirement that would include the characteristic personal to the student himself to the exclusion of others, which renders the students as skaters qua enrolled students and not skaters qua members of the “public” under section 3 of the IGCO with the application of the test set out in DPP v Vivier [1991] 4 All ER 18. Thus, leading to the conclusion that the Premises is not a public skating rink. Therefore, the Applicant asked the Court to allow the application.

Respondent’s Submission

11.On Point 1, the Respondent saying that the Judge had fully analysed and addressed the parties’ arguments at the appeal hearing. In that, the Court held that:

(i)  The definition of “public skating rink (公眾溜冰場) ”, under section 2 of the PHMSO does not differentiate between “ice skating” and “roller skating”;

(ii)  The statutory definition clearly encompasses all types of skating activities;

(iii)  None of the dictionary definitions cited confine “skating” as an activity to mean “ice skating” only;

(iv)  According to the relevant legislative history, the licensing regime aims at regulating skating activities to ensure public safety, public health, and public order;

(v)  The Chinese text “公眾溜冰場” in the statutory definition could not have been intended to be remedial of the English text “public skating rink”;

(vi)  There is nothing ambiguous in either the English or Chinese version of the statutory definition, and the rule against doubtful penalisation is not engaged;

(vii)  The phrase “特許溜冰場” used in the prescribed sign required to be placed outside a licensed skating rink can be used for both ice and roller skating;

(viii)  The reference to “溜冰場” in the Chinese speech of the Secretary for Planning, Environment and Lands was made in the context of regulating emissions of nitrogen dioxide from “ice resurfacers” and cannot be interpreted to suggest that the Secretary was meaning to say that “溜 冰 場” means “ice skating rink” only; and

(ix)  DW2’s personal belief that the statutory definition is ambiguous is not a defence to the charge laid against the Applicant.

12.So the Respondent would say the Applicant has not advanced any reason for suggesting that the Judge’s aforesaid reasoning was wrong. It is not enough for the Applicant to simply suggest that “there is clearly a real controversy as to the correctness of the interpretation”. And the appellate court is required to be satisfied that the question is reasonably arguable, see the case of HKSAR v Fong Kwok Shan Christine, FAMC 29/2016.

13.The Respondent further says the Applicant’s arguments are mere repetition of what had been already rejected by this Court. The Respondent submits that it is plainly wrong for the Applicant to rely solely on the different dictionary definition of “skating” or “skating rink” to question the Judge’s reasoning for interpreting the said words to cover both “ice” and “roller” skating in disfavour to the Applicant.

14.And concerning the rules of statutory construction, these are well established. Natural and ordinary meaning of words used in statutory provision are only a starting point which cannot alone be determinative of their proper construction. As the CFA recently noted in HKSAR v Chan Chun Kit [2022] 25 HKCFAR 191, “words are construed in their context and purpose”.

15.On the other hand, without suggesting any reasons for questioning the Judge’s reasoning, the Respondent submits that Point 1 is clearly not reasonably arguable. As the CFA noted in So Yiu Fung v HKSAR [1999] 2 HKCFAR 539, that it is not a second court of appeal and its task does not involve repeating the exercise of reviewing convictions to see if they were safe and satisfactory. So the Respondent submits that Point 1 should not be certified as a point of law of great and general importance.

16.On point 2, the Respondent says in Kau Sai Chau case, it was already confirmed that how to determine what constitutes a “class of the public” depends on the circumstances of individual cases. In that case, it was stated:

“The question of whether a place is one to which the public have access for the purposes of road traffic and ancillary legislation 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.”

17.And Respondent will say that in Point 2, it appears that the Applicant is not challenging the aforesaid Settled Test, but seeks to seek guidance from the CFA regarding the correct approach to determine a “class of public” and how to apply the test.

18.With regard to the screening process, the Respondent submits that the CFA had made it clear that even if there exists any screening process in that only golfers with the requisite handicap could play at the golf course, they remained a “class of the public”.

19.Now the Respondent submits that the Point 2 raised by the Applicant is likewise unnecessary to be answered because it is in effect asking the same question as in the Kau Sai Chau case. And it is not necessary to answer the question of “how to apply the Settled Test” either because after all it is largely a matter of fact and degree for a tribunal of fact to determine.

20.In the appeal, the Judge already explained the Applicant’s “studentship programme” or “time-limited membership” could be obtained with mere payment or roller skaters were admitted not because of any characteristic personal to themselves. The skaters were members of the public in general. The Applicant’s business model clearly welcomed all members of the public to join.

21.Therefore, the Applicant has not advanced any reason for suggesting the Judge’s reasoning was wrong and Point 2 merely repetition of what had already been rejected by this Court. So the Respondent submits that this Point 2 is clearly not reasonably arguable, and does not raise any point of law of great and general importance. All in all, the application should be dismissed.

Consideration

22.Section 32(2) of the Hong Kong Court of Final Appeal, Ordinance, Cap. 484, provides:

“(2) Leave to appeal shall not be granted unless it is certified by the Court of Appeal or Court of First Instance, as the case may be, that a point of law of great and general importance is involved in the decision or it is shown that a substantial and grave injustice has been done.”

Further, the point of law raised shall be reasonably arguable, see HKSAR v Fong Kwok Shan Christine FAMC 29/2016.

23.Firstly, on Point 1, as to the interpretation of the term “public skating rink”, particularly whether it includes both “roller skating” and “ice skating”, I have already fully analysed and given detailed reasons as set out in the judgment, and as stated above by the Respondent. The Applicant did not put forward any further argument and just repeated the argument during appeal, on which I find it not reasonably arguable, and it does not raise any point of law of great and general importance.

24.On Point 2, about the definition of “public” and to what extent a screening scheme should be considered. The CFA decision in the Kau Sai Chau case had already laid down the test and further stated that it was largely a matter of fact and degree. Clearly, the Applicant is now seemingly asking for how to apply the test in different cases, particularly as to the screening process.

25.However, the application had been fully considered in the appeal and the Applicant did not suggest any other matters as rejected by this Court. The point raised is clearly not reasonably arguable nor points of law of great and general importance. Therefore, I have no basis to grant the application. The application is dismissed accordingly.

Mr Cheng Hoi-chung Raymond, SADPP, and Ms Tang Tsz-lam Lillian, SPP (Ag.) of the Department of Justice, for the Respondent

Mr Jeffrey Tam, Mr Andrew Lau and Mr Oscar Tang, instructed by Wan Yeung Hau & Co, for the Applicant