HKSAR v. Lam Chak Pui

HCMA001097/1998

HCMA1097/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 1097 OF 1998

(On appeal from NKC 5051/98)

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Coram: Deputy Judge Wesley Wong in Court

Date of Hearing: 28 July 1999

Date of Delivery of Judgment: 11 August 1999

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J U D G M E N T

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1. The Appellant was charged and convicted on three counts of being a licensee permitted persons under 18 years of age to drink on licensed premises contrary to Regulations 28 and 30(1) of the Dutiable Commodities (Liquor) Regulations Cap. 109.

2. The evidence is simply that that three witnesses who were under the age of 18 went with a friend of the Appellant Ah Sing to his licensed premises for karaoke. They were not asked by any one as to their age. They said they did drink about 1/2 to one glass of beer.

3. Both the prosecution and the Appellant agreed that these were strict liability offences.

4. The only ground of appeal is that the learned Magistrate erred in failing to consider that it was a defence for the Appellant to prove on balance that he had an honest and reasonable belief in a state of facts which, if they existed, would make his act innocent.

5. Mr. Chiu for the Appellant cited:

(1) Sweet v. Parsley [1969] 53 Cr. App. R 221

(2) AG v. Fang Chiu Yue and others [1995] 1 HKC 21

(3) Uniglobe Telecom (Far East) Ltd. v. HKSAR FACC No. 5 of 1998

in support of his submission. This again is not in dispute. The only issue is on the facts of this case whether the Appellant had an honest and reasonable belief that the three girls were over 18 years. And did the Magistrate make such finding.

6. In the transcript at p.59 E-L the Appellant was asked whether he suspect those three girls were under age. His answer was whenever he was suspicious he would ask in slang in Punti (夠唔夠秤) meaning whether they were of age. He said he did ask Ah Sing. He was not aware whether others did hear that.

7. At p.64 N in cross examination he was asked whether he did directly ask those three girls whether they had reached 18 years of age and the answer was "no".

8. At p.65 M he was asked whether he had expected those girls would drink when he asked Ah Sing if they reached 18 years of age and his answer was "yes".

9. The learned Magistrate had in her Statement of Finding p.7 considered the point about the age of those three girls.

10. On the facts and on his own evidence and admission he had doubts as to the age of those three girls and had not verified from those girls.

11. In the premises the Appellant had failed to prove on balance that he had an honest and reasonable belief that the girls were over 18 years of age.

12. The appeal against conviction is therefore dismissed.

Representation:

Mr. Simon Tam, SGC of DPP, for the Respondent.

Mr. Charles P. T. Chiu instructed by Messrs. Littlewoods, Solicitors for the Appellant.