Attorney General v. Chan Kei-lung

CACC000331/1977

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Coram: Briggs, C.J., Huggins, J.A. and Leonard, J.

Date of Judgment: 20th July 1977.

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JUDGMENT

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Huggins, J.A.:

1. This appeal by way of case stated comes before the court upon the reference of a single judge. The Respondent was charged before a magistrate under by-laws 5(1) and 56(1) of the Hawker By-Laws. The learned magistrate held that, as the offence prima facie disclosed on the evidence of the prosecution was one under s.83B of the Public Health and Urban Services Ordinance, the charge was wrongly laid under the By-laws. The basis of this decision was that by-laws 5(1) and 56(1) were inconsistent with s.83B and were to that extent ultra vires. The magistrate dismissed the information and the Crown appeals.

2. Section 83B(1) and (3) read:

Looked at in isolation those provisions leave little room for uncertainty: they are an absolute prohibition against hawking in any street without a licence. The evidence disclosed that the Respondent was hawking in a street and that he had no licence. However, it is argued on behalf of the Appellant that s.83B (1) does not mean what at first, second and even third sight it would appear to mean and we are asked in effect to read it as though it read:

"No person shall except in accordance with a licence issued under regulations made under s.83A hawk in any street which has under subsection (4) of this section been declared to be a street which may be set aside to be used for hawking purposes".

It is said, therefore, that s.83B(1) and (3) are not concerned with hawkers who (like the Respondent) have no licence at all, but only with hawkers who have a licence but not one which allows them to hawk in a "declared" street: persons of the former class must be prosecuted under by-laws 5(1) and 56(1), which provide:

Justification for this interpretation is sought from the history of s.83B and from the provisions of subsections (4) to (8) inclusive.

3. Section 83B first saw the light of day in 1972. Subsections (1) to (3) then read:

Those subsections thus made it an offence to hawk without a licence not in a "declared" street but only in streets which were not "declared" streets. The subsections took their present form in 1973. All reference to "declared" streets was dropped from subsection (1) and the phrase "any street" was substituted. The apparent result was to widen the territorial application of the section and it is difficult to believe that such wording would have been adopted if the intention was to change the prohibition from one relating to streets other than "declared" streets to one relating to "declared" streets. The magistrate was referred to the Objects and Reasons for the amending Bill of 1973 to see if he could discover the mischief at which it was aimed (as is permitted: see Elson-Vernon Knitters Ltd. v Sino-Indo-American Spinners Ltd. 1972 H.K.L.R. 468) and he concluded that it certainly did not "point to the attitude that a right to hawk without a licence in a street set aside for the purpose was a mischief to be removed". For my part I am not sure that a person without a licence did in fact have a right, immediately before the amendment, to hawk in a "declared" street, because by then by-laws 5(1) and 56(1) were in force, but equally the Objects and Reasons do not indicate a mischief which would support the Appellant's interpretation. Indeed, with respect, I find these Objects and Reasons no easier to understand than much of the legislation: the proposed amendment (which was enacted) does not appear to have anything whatever to do with "enabling the Authority to issue licences".

4. There is no doubt but that subsections (1) and (3) in their present form fit uncomfortably into the context of the section as a whole. The remaining subsections are all concerned with "declared" streets and that fact is relied upon as indicating that the earlier subsections were intended to be limited to such streets. Our attention was drawn to Craies on Statute Law (6th Edition) at p.144 where the decision in Reg. v Buttle (1870) L.R. 1 C.C.R. 248 is summarised as follows:

"In R. v. Buttle, the court held that there was no reason at all for altering the language used in the earlier statute which had prima facie been extended in the later Act, and that, as Kelly C.B. said, 'whoever framed the statute did it in a slovenly way, and showed great want of care in drawing it.'".

Whoever framed our amending statute may have shown great want of care in drawing it, but, if he did, I am unable to conclude that in this instance such want of care was the reason for the change in wording: the change here was clearly deliberate and it requires stronger evidence than we have before us to establish that the result intended was that for which the Appellant contends. Indeed, I think it far more likely that the intention was to extend the prohibition to all streets, which is in accordance with the natural meaning of the words. I have not overlooked the fact that s.83B was enacted in its present form after the By-laws were made in 1972 and that the Legislature must be assumed to have been aware of the existence and terms of the By-laws. Even so the words of the new subsection (1) are so clear and uncompromising that in my judgment they leave no room for any limited interpretation.

5. Nevertheless the fact that s.83B was amended when the By-laws were already in existence is not without relevance. The By-laws were entirely compatible with the section in its original form, so that no question arose of the by-laws' being ultra vires by virtue of s.28(b) of the Interpretation and General Clauses Ordinance. Nor could it then have been said that by-laws 5(1) and 56(1) were not "necessary" within the meaning of s.83A(1) (k), under which the Appellant accepts that they were made. The effect is that, although the By-laws were intra vires, they were impliedly revoked by the amending Ordinance of 1973 to the extent that they were inconsistent with the new provisions, for this is a penal statute. It is not necessary in this case to decide the full extent of the inconsistency and it is enough to say that as there would have been a case to answer against the Respondent under s.83B he could not properly be convicted under by-laws 5(1) and 56(1).

6. The questions put to us are these:

I would answer:

Accordingly I would dismiss the appeal and would add an expression of my particular appreciation of the assistance given to the court by Mr. Bokhary as amicus curiae.

20th July 1977.

Representation: