Attorney Generat v. Chan Foo

HCMA000733/1988

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Coram: Hon. Cons, V.P., Clough & Hunter, JJA.

Date of hearing: 11 & 12 July 1989

Date of delivery of judgment: 12 July 1989

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JUDGMENT

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Cons, V.P.:

1. We have before us two appeals by way of case stated from separate magisterial decisions. They have been referred to us by Duffy J. under Section 118(1) (d) of the Magistrates Ordinance, Chapter 227.

2. Both appeals are concerned with Amusement Game Centres, one of seven types of undertaking required to be licensed by the Miscellaneous Licences Ordinance, Chapter 114: Section 4 and the First Schedule. Section 3 of the Ordinance provides that the Governor in Council may make regulations. Two which have to some extent been canvassed before us are Regulation 9, which provides that "Subject to the approval of the Governor in Council, the licensing authority may impose such special conditions in respect of any licence as the circumstances may require", and Regulation 152 which, apart from imposing two particular conditions, adds "and such special conditions as the licensing authority may in his discretion impose".

3. The Respondent in the first Case Stated, Mr. Chan Foo, is the licensee of an amusement centre held under Licence No. 5515. Before the Magistrate counsel then appearing for the Crown produced a certified copy of the conditions which are attached to that licence. There are twenty of them, number (xvii) reading "No person under the age of 16 shall be allowed to enter the licensed premises". They appear to be standard conditions.

4. The Respondent was charged with two offences of failing to observe the condition I have just quoted, contrary to Section 7 of the Ordinance, in that on the 20th August, 1987 he allowed three children of the age of 15 years to be on the licensed premises and on the 25th September, 1987 two more such children. It was an agreed fact that children of that age were there on those two occasions.

5. It was then conceded by counsel for the Crown that no approval had been given by the Governor in Council to the conditions in question and for that reason, amongst others, the Magistrate held that the conditions were ultra vires. He accordingly dismissed the charges. The question he asks in the Case Stated is whether he was right to do so, that is, is condition (xvii) ultra vires?

6. Yesterday, when these two cases were called on before us, we accepted in evidence an affidavit from the Clerk of Councils to the effect that "the Governor in Council at a meeting on the 10th July l984 considered and approved the imposition of special conditions in respect of amusement game centre licences". There are then set out in extenso the 18 conditions referred to. We admitted that evidence because we considered it essential in the interests of justice that the matter should not be considered on what would otherwise be a demonstrably false premise. The 18 conditions included in the affidavit are not identical with the 20 conditions imposed on the Respondent but condition (xvii) of the latter is to be found amongst them.

7. Since then we have given consideration to the question whether, although by reason of the provisions of the Magistrates Ordinance we may admit, and therefore take into account evidence that was not before the trial court, it might not be better, in view of the complete change of basis thus effected in the Case Stated, to return the matter to the original forum.

8. Relevant to this question is another matter that we have noted. As I mentioned a moment ago, the conditions attached to the Respondent's licence appear to be standard conditions, so much so that some of them are in the alternative with a note that one should apply where it is an Adults' Centre and the other where it is a Children's Centre. Condition (xvii) is in the first category; condition (xviii), which is the offered alternative, reads "No person of 16 years of age or above shall be allowed to enter the premises unless he is in charge of child (ren) under 16 years of age". There is nothing in the Agreed Facts, or elsewhere in the Case Stated, to indicate whether the Centre in question catered for adults or children.

9. Bearing these two factors in mind, in my view the proper course-and to which Mr. Kilgour for the Crown accedes, and to which Mr. Tang for the Respondent does not object - is to remit the matter to the Magistrate with an order to re-open and re-consider the same in the light of the further evidence that we have admitted. Either side would, at the hearing, be free to apply to him as it thought fit. Whether it would at that stage be just for the Magistrate to accede to whatever, application might be made would be, of course, a matter for his own determination. As the present situation has been brought about solely by the conduct of the Crown I would order that the costs of the hearing before this Court and before Duffy J. be taxed and to the Respondent in any event.

10. The Respondent in the second Case Stated, Mr. YUNG Hon Piu, is the licensee of an Amusement Game Centre held under Licence No. 5696. He was likewise charged with failing to observe a condition of his licence It is set out in the Case Stated as condition No. 5, "Only those types of machines or devices approved by the licensing authority and contained in the list issued by the licensing authority from time to time shall be installed or placed for use of operation in the premises".

11. The question raised in the Case Stated is concerned with the nature of the liability imposed by the Ordinance upon such a licensee. However it has to be observed that the condition in the terms I have just quoted is not to be found among those set out in the affidavit of the Clerk of Councils. In that circumstance Mr. Kilgour has, in my view very properly, indicated that he does not wish to pursue the appeal any further and would be content to have it dismissed. I would therefore make an order to that effect and that the costs before this Court and before Duffy J. likewise be taxed and to the Respondent.

Clough, J.A.:

12. I agree with the orders proposed by My Lord Cons in both cases. For my part I would have entertained grave doubts whether I would have acceded to an order remitting the case of Chan Foo for a re-hearing if this had been opposed. It seems to me that it is strongly arguable that the Crown should not be entitled to obtain a re-hearing after conceding below that the relevant conditions had not been approved by the Governor in Council. However the re-hearing was not opposed, subject to the provision of costs. I therefore agree to the proposed order to remit the case and to the others suggested by My Lord Cons.

Hunter, J.A.:

13. I agree with the orders proposed in both cases by My Lord, the Vice President.

Representation:

D.S. Kilgour, Crown Prosecutor for the Appellant