Tsang Oi Mui and Another v. Attorney General

HCMA000178/1984

BETWEEN:-

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Coram: The Honourable Mr. Justice Jones in Court.

Date of hearing: 27 April 1984

Date of delivery of judgment: 27 April 1984

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JUDGMENT

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1. On the 24th February 1984 the first appellant was convicted by a magistrate at the Causeway Bay Magistrates Court that being the holder of a liquor licence he permitted persons under the age of 18 years to drink intoxicating liquor on licensed premises contrary to Regulation 28 of the Dutiable Commodities (Liquor) Regulations and Section 46(A) of the Dutiable Commodities Ordinance Cap. 109. The second appellant who Was the first appellant's servant was convicted of aiding and abetting. Both appellants were fined $500.

2. The appellants appeal against their conviction. Regulation 28 reads:-

"No licensee shall permit any person under the age of 18 years to drink any intoxicating liquor on any licensed premises."

Section 46A(1) of the Ordinance provides:-

where an offence against this Ordinance is committed by a servant of a licensee, the licensee shall, without prejudice to the liability of any other person, also be guilty of that offence but shall not be liable to any term of imprisonment.".

3. The facts reveal that a licence check was carried out by police officers at the Hollywood Grill and Lounge, 298 Hennessy Road, Wanchai on the 18th November 1983. Two persons under the age of 18 were found drinking beer at the premises. It was agreed that the first appellant was not present at the premises at the time of the alleged offence whilst the second appellant who was present was the manager of the restaurant. Neither appellant gave evidence at the hearing.

4. In reaching his verdict the learned magistrate decided that the offence is one of absolute liability: He said that there is no statutory defence and referred to the absence of the word "knowingly" in the legislation to support his opinion. However, because the word "knowingly" is not included it does not necessarily follow that the offence is one of absolute liability. In Sweet v. Parsley (1970) A.C. 132 Lord Reid at page 149 said:-

It is also firmly established that the fact that other sections of the Act expressly require mens rea, for example because they contain the word "knowingly," is not in itself sufficient to justify a decision that a section which is silent as to mens rea creates an absolute offence. In the absence of a clear indication in the Act that an offence is intended to be an absolute offence, it is necessary to go outside the Act and examine all relevant circumstances in order to establish that this must have been the intention of Parliament. I say "must have been because it is a universal principle that if a penal provision is reasonably capable of two interpretations, that interpretation which is most favourable to the accused must be adopted.".

5. Further the learned magistrate appears to have overlooked the provisions of Section 46A(2)(b) of the Ordinance which reads:-

"     (2)      Where a prosecution is brought against a licensee by virtue of this section in respect of an offence committed by a servant, it shall be a defence

(b)

in the case of any other offence, if the licensee shows that he took all practicable steps to prevent the' commission of the offence.".

6. It appears that. the solicitor for the appellants at the hearing did not direct his mind to the possible defence afforded by the section despite the general tenor of the evidence indicating that such a defence was available. The burden. of proving this defence will of course be upon the accused on a balance of probabilities.

7. As a result of the convictions will be quashed and the sentences set aside. The fines if paid will be remitted. There will be an order for a rehearing before a different magistrate.

Representation:

Miss Betty Kwan (P.H. Sin & Co.) for Appellants.

Mr. A.A. Bruce (Legal Department) for Respondent.