Lee Hon v. The Queen

CACC000326/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 326 OF 1975

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Coram: Full Court (Briggs, C.J., Huggins & McMullin, JJ.)

Date of Judgment: 18th June, 1975.

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JUDGMENT

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McMullin, J.:

1. The facts giving rise to the present appeal are succinctly stated by the learned magistrate in his statement of findings and may conveniently be set out in the manner there recorded:

The appellant was charged under By-law 5(1) of the Hawker By-Laws which provides that no person may hawk without a licence issued thereunder. The point at issue in the appeal is whether a person in such circumstances can be said to be a hawker within the definition of that term appearing in Section 2 of the Public Health & Urban Services Ordinance. The material part of that definition is as follows:

"'Hawker' means -

We are fortunately not compelled in this case to attempt to resolve the dilemma posed by the learned magistrate who upon convicting the appellant on the 20th of March 1975 briefly noted his reasons for doing so in the following terms:

"The case highlights a divergence between law and logic where a Restaurant can simultaneously be described both as private premises and as a public place."

The source of that apparent paradox is, of course, the definition of "public place" to be found in Section 3 of the Interpretation & General Clauses Ordinance the relevant portion of which, for the purposes of the present appeal, reads as follows:

"'Public place' means -

In presenting the case for the appellant Mr. Frank Cheung did indeed deem it necessary to argue that the very width of that definition would make it necessary to interpret those clear words in a limited sense if the legislation designed to control the operations of hawkers in Hong Kong is to be prevented from applying to persons and operations of a kind which it clearly was not the intention of the Legislature to reach in dealing with hawkers. Mr. Carolan for the Crown, while not conceding that the definition of "public place" should be read in the restricted way suggested by Mr. Cheung in relation to its context in this legislation, was nevertheless happy to admit that anomalous results might come about through the application of the definition to the full extent of the language used by the Legislature. He invited us however to found our judgment in the present case upon the narrower basis provided by the decision in Smith v. Hughes⁽¹⁾. We are content to do so for there is no doubt that the principle adopted by the court in that case applies with equal force to the case under consideration. That was a case taken under the Street Offences Act of 1959, section 1 of which forbids soliciting "in a street or public place". The two appellants in the case were common prostitutes whose manner of attracting customers was to sit at windows within their premises adjoining the public thoroughfare and by gestures or by words to indicate their purpose and their price to men passing by in the street. It was contended for the defence that no offence had been committed since the women were not plying their trade in the street. The three judges of the Court of Appeal were unanimously of the opinion that it was unnecessary, in prosecuting such a charge, to show that the person doing the soliciting was herself in the street at the time. They took the view that the intention of the Act was to clean up the streets and that it was enough if the prosecution could show that the solicitation had reached persons in the street. In the present case it is conceded that a principal purpose of the legislation controlling hawking is the elimination of nuisances and obstructions on the public thoroughfare. From the statement of facts it appears that among the customers of the appellant were persons who were passing in the street and who, in purchasing his wares, would necessarily pause to inspect them and to pay for them. As in the case of Smith v. Hughes⁽¹⁾ it matters not that the appellant himself was stationed upon private ground even although that may have been in his exclusive occupation by leave of the management of the restaurant. Even if he and his stock-in-trade were situated in private premises his trading was done in the public street to the extent that a proportion of the purchasers of his magazines and newspapers accepted his offer of trade and acted upon it while themselves standing in the public domain outside his private enclosure. The learned magistrate based his decision on the more debatable ground provided by the definition of "public place" in the Interpretation & General Clauses Ordinance. In stating his findings subsequent to the conviction he expressed some misgiving over his decision because of having overlooked the provisions of s.83B(1) of the Ordinance which specifically forbids unlicensed hawking in a street. If he feared that this express provision in some way derogated from the validity of the conclusion to which he had come concerning the place where the appellant and his stock-in-trade were located that does not seem to be well justified. It is not an instance of "expressio unius est exclusio alterius"; the express ban on unlicensed street hawking is a particular case within the general interdiction upon unlicensed hawking and a greater penalty is imposed in respect of it. It may be that there are cases when the legislative context alone will oblige some narrowing of the wide apparent reach of the language used in the Interpretation & General Clauses Ordinance but we do not think that S.83B provides such a case. It is however unnecessary to express a final opinion on the point. Smith v. Hughes⁽¹⁾ was not cited to the learned magistrate but although he does not appear to have considered it it is reasonable to assume that he would have found in it a welcome answer to his difficulty. At all events we are satisfied that his decision is to be sustained upon this alternative ground. For these reasons we dismissed the appeal at the conclusion of the hearing.

Representation:

John Cheung (K.F. Wong & Co.) for Appellant.

Carolan for Crown/Respondent.

(1) (1960) 2 All E.R. 859.