HKSAR v. Suen Suk Hang

HCMA001201/2002

HCMA1201/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1201 OF 2002

(ON APPEAL FROM WSS11099 OF 2002)

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Coram: Deputy High Court Judge McMahon in Court

Date of Hearing: 20 February 2003

Date of Judgment: 27 February 2003

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J U D G M E N T

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1.This is an appeal against conviction only.

2.The appellant, a restaurant licensee, was convicted after trial of an offence of selling food, namely oysters, unfit for human consumption in that they contained the Norwalk virus contrary to section 54(1)(a) of the Public Health and Municipal Services Ordinance, Cap. 132.

3.The facts of the case as found by the magistrate were that a mother and her son respectively PW1 and PW2 at trial had dined with other persons at the appellant's restaurant on 8 February 2002 on an oyster dish. About 30 hours later, both PW1 and PW2 were hospitalised with severe intestinal pain and vomiting. After analysis they were found to have been infected by the Norwalk virus. The Norwalk virus is rarely present in any foodstuff other than shellfish. The only shellfish meal either PW1 or PW2 had eaten within the recent past was at the appellant's restaurant. Accordingly the Health and Environmental Department was alerted and PW3, an officer of that department, went with other colleagues to the appellant's restaurant on 11 February. PW3 seized a kilo of raw oysters from the refrigeration unit of the appellant's restaurant and they were sent for analysis. The result of the analysis was to the effect that the oysters were infected with the Norwalk virus.

4.PW6 and PW7, whose evidence was also accepted by the magistrate, were medical doctors who were officers of the Department of Health. They said that the onset of illness in both PW1 and PW2 was consistent, so far as the incubation period of the Norwalk virus was concerned, with their taking of infected food at the time they had eaten at the appellant's restaurant. Both witnesses said that oysters were peculiarly suited to the transmission of the Norwalk virus as they were "filter feeders" which, by that action, concentrated the virus in their organs and were thus much more high risk than any other food in this regard. PW6 said in his evidence that cooking the oysters at 90°C for at least 60 to 90 seconds was required to kill the virus.

5.The magistrate had, in arriving at his findings of fact, rejected the appellant's evidence. That evidence had been to the effect that the sample batch of oysters seized on 11 February was a different batch from which those eaten by PW1 and PW2 had come. The appellant also said that all oysters served in his restaurant were cooked at 100°C for 10 minutes.

6.The magistrate gave reasons for rejecting the appellant's evidence. Those reasons were concise and sensible and they centred on illogicalities and inconsistencies in the evidence of the appellant. For example, the magistrate referred to the appellant not informing PW3 that PW1 and PW2 had eaten from a different batch of oysters to that actually seized and sent for testing.

7.The magistrate accepted the evidence of all the prosecution witnesses. In that regard, in delivering his findings he said :

"I was satisfied from the evidence of PWs 1-7 that PWs 1 and 2 had become infected with the Norwalk-like virus; it was the oyster meal from the appellant's restaurant on 8th [February] that had contained and passed the infection to PWs 1 and 2. The only oysters found in the suspected premises on 11th February were infected with the same virus."

8.The appellant, who represented himself before me, presented one fundamental ground of appeal. He complains that the evidence before the magistrate was simply not enough to enable the case against him to be proven beyond reasonable doubt. In that regard he argues firstly that the Norwalk virus can possibly contaminate food other than shellfish so PW1 and PW2 may have become infected somewhere else, and secondly, that no one else in PW1 and PW2's party got ill although the oysters formed a common dish at the table.

9.The magistrate was aware of the first point raised by the appellant. The evidence before him was that while it is possible that the Norwalk virus contaminate food other than shellfish, the risk of that is very low, and as to the second point, apparently there was no evidence one way or the other as to whether the friends of PW1 and PW2 had become ill after eating at the appellant's restaurant.

10.The magistrate was aware of all this and no doubt took it into account. In arriving at his verdict he said that he was satisfied that all elements of the offence had been proven beyond reasonable doubt. His conclusion in that regard was based on his finding that there was only one clear inference to be drawn from the evidence and that was that both PW1 and PW2 had become infected by the Norwalk virus by way of ingesting infected oysters at the appellant's restaurant. In using the words "one clear inference" I am sure the magistrate was in effect applying the same test as that expressed by the words "only reasonable inference". That is because he was perfectly aware, and expressly stated in his findings, that all elements of the offence had been proven by the prosecution beyond reasonable doubt : McGreevy v. D.P.P. [1973] 1 WLR and HKSAR v. Tang Kwok Wah, FACC4/2001. It perhaps would have been better if the magistrate had used the more conventional terminology in regard to his drawing of inferences, but I am satisfied that in any event he applied the appropriate test once he had reminded himself he had to be sure beyond reasonable doubt that the prosecution had proven its case.

11.The question therefore is whether the evidence before him, and the facts he found proven from it, would allow the inference to be properly drawn by him that PW1 and PW2 were made ill by the appellant's Norwalk virus infected oysters.

12.The facts accepted by the magistrate were :

(1) The batch of oysters seized from the appellant's restaurant were infected with Norwalk virus; that seizure took place only a few days after PW1 and PW2 had eaten at that restaurant. The seized oysters were provided by the same supplier as those eaten by PW1 and PW2 on 8 February.

(2) PW1 and PW2 were in fact infected by that same sort of virus.

(3) The infection of PW1 and PW2 must have occurred when they ate together, both having displayed symptoms of the virus at about the same time.

(4) PW1 and PW2 ate oysters together at the appellant's restaurant.

(5) That was the only shellfish meal they had shared together within the incubation period of the virus. It was one of only three meals they had shared together during that period.

(6) Oysters are, as shellfish, a prime source of Norwalk virus, although it can rarely occur in other foodstuffs.

13.Given the magistrate's acceptance of these facts, in my view, there was enough before him to conclude the prosecution had proven its case beyond reasonable doubt. Certainly any one or perhaps more of these facts may not have been sufficient for that purpose. But all of those facts taken in conjunction, in my view, renders the drawing of the only reasonable inference that PW1 and PW2 contracted their illness by way of eating infected oysters at the appellant's restaurant proper, and the consequent conviction of the appellant safe. The magistrate was entitled to find the prosecution had proven its case beyond reasonable doubt.

14.The appeal against conviction is dismissed.

Representation:

Mr W.S. Cheung, DPGC of the Department of Justice, for the Respondent

The Appellant, in person