HKSAR v. Tam Yuk Ha
Read the full judgment text of HCMA 1385/1996 on BabelCite. This High Court CFI judgment.
1. I shall invite my brother Liu JA to deliver the first judgment.
Cited by 6 cases
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IN THE COURT OF APPEAL OF THE HKSAR Magistracy Appeal 1996, No. 1385 ________________
________________ Coram: Hon Chan CJHC, Liu JA & Wong J in Court Date of hearing: 29 July, 1997 Date of delivery judgment: 13 August, 1997 ________________ J U D G M E N T ________________ Chan, CJHC: 1. I shall invite my brother Liu JA to deliver the first judgment. Liu, J.A.: 2. This case involves a prosecution brought under By-law 35 of the Food Business (Urban Council) By-laws, Cap 132. By-law 35(a) reads as follows:
3. It is agreed that Exhibit P3 is a duplicate of a plan marked P1 which was approved for the appellant's licensed shop premises under By-law 33. By-law 33(1) provides:
4. Of the 11 items from (a) to (k), five regulate allocation of space for a licensee's related purposes. It is reasonably clear, as it is conceded by counsel for the appellant, that the location, area and dimensions of the allocated space form an integral part of the approved plan. Therefore, the approved plan comprises the particulars required to be included by By-law 33(1)(a). Adherence to allocated space in user would inevitably be a matter of considerable importance to the authority, and the licensee is placed under restraint by By-law 35 as particularised in the approved plan. 5. The appellant was summonsed before a special magistrate. She was charged to have "permitted to be made in respect of the premises to which the licence related additions, namely addition of space for the preparation of open food by provision of 2 metal trays occupying an area of about 1 x 3 square metres as fresh provision extension on pavement in front of" her shop. On 10 October, 1996, she was found guilty by the special magistrate, fined $3,000 and ordered to pay $2,000 costs. From the decisions of the special magistrate, she appealed. On 20 May 1997, her appeal was reserved for hearing by this court. 6. Central to this appeal is the proper interpretation of By-law 35(a). At all times material to this case, the Chinese version of By-law 35 had not been authenticated. It is sought to be argued that the word "addition" in By-law 35(a) envisages a structural or building addition and should be construed accordingly. Submission of counsel made on By-law 35 by reference to structural or building additions/alterations does not bear close examination. The charge the appellant faced was an unauthorised addition of space for preparing open food by the provision of two metal trays and By-law 35(a) prohibits additions/alterations of every description made in respect of (not, be it noted, to) her shop, which would result in a material deviation from the approved plan i.e. the particulars included in the approved plan. Variation or expansion of spaces allocated under By-law 33(1) may be achieved without doing construction works or works of a structural nature. In practical terms, the complaint was merely one of setting up an unauthorised additional space in respect of the appellant's licensed premises, exceeding the one-dimensional limits specified in the particulars, resulting in a material deviation from the plan approved in a manner prescribed by By-law 33(1). Thus put, the language of By-law 35(a) admits of no semantic obscurity. The words "alteration or addition" in By-law35(a) are not exclusively tied to deviations of a structural or building nature. These words are simply not so restricted. As to the licence, none of the particulars for space allocation required to be included in the approved plan under By-law 33(1) needs to involve construction works or works of a structural nature, and consequently an unauthorised deviation does not necessarily have to be associated with such works. It would be absurd, therefore, to suggest that the particulars given on the approved plan for the space allocated to the preparation of open food under By-law 33(1)(a) could not be breached except by a structural or building alteration/addition to the appellant's licensed shop premises. 7. On the evidence adduced before the special magistrate, the space allocated under By-law 33(1)(a) to the preparation of open food was allegedly added to without permission. The alleged addition was made in respect of the appellant's licensed premises and resulted in a material deviation from the approved plan. What was charged is a violation of the limits put on an allocated space for preparing open food, the particulars of which are conceded by counsel to be a part of that plan. 8. Mr Yeung, counsel for the appellant further argues that the authenticated Chinese language text of By-law 35 has finally laid to rest all opposition to the argument that the English word "addition" in By-law 35(a) conveys and was contemplated to convey the meaning of a structural or building addition. First of all, the authenticated Chinese language text of By-law 35(a) was obviously not designed to have any remedial effect. On the contrary, the draftsman of the Chinese language text must have striven to reproduce with accuracy a meaning compatible, if not identical with that of the English language text, bearing in mind that the Chinese language text was brought in later after the original By-law 35. 9. Section 10B of the Interpretation and General Clauses Ordinance provides:
10. The Chinese language text of By-law 35(a) reads:
The appellant is unable to invoke as an authenticated language text the Chinese version which had not come into existence. It is not suggested that on its own the English language text of By-law 35(a) suffers from any mischief which has to be addressed. The Chinese language text could not have been intended to be remedial of the English language text. Any rectification would have to be effected by an amendment, not by the other language text. What effect, if any, would the subsequently authenticated Chinese language text have on the English language text? 11. I should pass then to consider whether or not the Chinese language text truly diverges from the English language text. If no difference of meaning is discernible in the two texts, it could hardly be claimed that the clear intention of the legislature evinced in the English language text has been obfuscated. The first question that leaps to mind is: could the two characters "工程" be said to be plainly of a structural or building nature? "工程" is defined in the Dictionary of Terms published by the Commercial Press (1987) as:
The definition of "工作" is given as:
The term "工事" is defined as follows:
A meaning of "營造" is "製作" i.e. making (p. 1061). 12. At p. 0558 of the same Dictionary of Terms, the definition of "建"includes "建立", meaning putting up, erecting. 13. The term "更改工程" denotes, inter alia, alteration work, alteration job, and "增建工程" additionally erected work. So understood, the English language text and the Chinese language text do not necessarily disclose a difference of meaning. Section 10B of the Interpretation and General Clauses Ordinance presumes these texts to have the same meaning. It is undeniable that in every case a uniform statement of the law must have been attempted for both of the authenticated texts. If the texts are not simultaneously prepared, the language of the text in current use, if still embraced, would most probably impress upon the endeavours of the draftsman to capture the legislative intent in his preparation of the text following. His efforts will be undoubtedly geared to achieving a coherence in language. Once a universally acceptable definition is available for affirming the intended language assimilation in the two texts, cogent reasons must be lacking for rebutting the statutory presumption that they are compatible. Therefore, unless the pertinent definitions of the Commercial Press, albeit published in 1987, can be demonstrated to be fundamental flaws, it would be quite unnecessary to proceed to consider a whole spectrum of meanings of these two characters. With these definitions in the Dictionary of Terms published by the Commercial Press being consonant to consistency between the two texts, there would seem to be no warrant for displacing the statutory presumption of By-law 35(a) as having the same meaning in each authentic text. In my view, there is no ambiguity to resolve in the English language text and on the above definitions there need not be any difference of meaning as between the English language text and the Chinese language text. For either of the texts, any form of alteration/addition would suffice. Counsel's contention founded on the Chinese language text fails. 14. Mr Yeung, counsel for the appellant further submits that the special magistrate failed to resolve the dissimilar identification of offending additions made in court by two different witnesses, PW2 and PW3. The matter before the special magistrate was one wholly devoid of complexity. He had the assistance of the colour photograph. In her evidence, the appellant did not herself refer to any other offending addition than the one in her charge. After all, she was not summonsed for any other unauthorised deviation. One simple complaint was brought before the special magistrate who could not have been confused by dissimilar or whatever descriptions offered by the two officials. 15. In his evaluation of evidence, the special magistrate concluded that "it was abundantly clear that the extension on the pavement was a material deviation from the approved plan". The nature of the offence testified to by the witnesses together with the addition depicted in the photograph and the infringing hatched area marked on Exhibit "P3" would require no further elaboration from the special magistrate before he proceeded to make his finding that the offending additional space for two trays was a material deviation from the particulars included in the approved plan. 16. Lastly, counsel refers to the prosecution's reliance on a fact which is said to have been unsupported by evidence. Suffice it for me to say that the special magistrate made no mention of that fact and cannot be assumed to have acted upon it. 17. There is no substance in these further contentions. The appeal is wholly unmeritorious and I would dismiss it. Wong J: 18. The language of By-law 35(a) is clearly unambiguous. I agree with the way in which my Lord Liu, JA construes that By-law. In so far as the Chinese language text could be resorted to in aid of interpretation, one should first apply a meaning of the two characters "工程" consistent with the English language text. If the two texts could be explained in harmony, there would be no reason to override the statutory presumption that they carry the same meaning. 19. For the reasons given by Liu, JA, I, too, would dismiss the appeal. Chan, CJHC: 20. For the reasons given by my brother Liu JA, I too would dismiss the appeal. 21. When this appeal was first brought before Yeung J on 25th May 1997, the prosecution applied under section 118(1)(d) of the Magistrates Ordinance for this appeal to be referred to this Court for consideration. There were apparently two reasons for the application. First, it was said that the approach adopted by the judge in the R. v. Tam Yuk Ha, Mag.App. No. 933/1996 on the interpretation of the English and Chinese texts of the same legislation was different from that adopted by the judge in Chan Fung Lan v. Lai Wai Chuen, HCMP No.4210/1996. According to the prosecution, it was necessary to have the guidance of the Court of Appeal on this issue. The second reason for the application for transfer was that there were, it was said, two conflicting High Court decisions on the meaning of similar statutory provisions. On the one hand, there was the decision of Bewley J in the case of Cheng Chun Yee v. A.G., unreported, Mag.App. No. 326/1991 dealing with By-law 34(a) of the Food Business (Regional Council) By-laws, Chapter 132. On the other hand, there was the decision by Yeung J in R. v. Tam Yuk Ha, Mag.App. No. 933/1996, which involved the same appellant as in the present case and a similar statutory provision which is By-law 35(a) of the Food Business (Urban Council) By-Laws. The learned judge in the Court below ordered that this appeal be referred to the Court of Appeal. 22. As it turns out, it was conceded by counsel for the appellant that when the charge in the present case was laid against the appellant, the Chinese text of the Food Business (Urban Council) By-laws had not been authenticated yet. Hence, the question of the Chinese text of a piece of legislation being different from the English text does not arise in this case. As a result of this concession, it is no longer necessary to deal with this first point. 23. As to the decisions in Cheng Chun Yee and Tam Yuk Ha, I think the "conflict" is more apparent than real. The judge in the Cheng Chun Yee case dealt with By-law 34(a) of the Food Business (Regional Council) By-laws and decided the case according to the English text. The reasons given for his decision were, with respect, rather terse. The judge in the Tam Yuk Ha case dealt with his case on the basis of what he saw as a discrepancy between the Chinese and English texts of By-law 35(a) of the Food Business (Urban Council) By-laws. It appears, from the reasons given by my brother Liu JA, that the judge in the Tam Yuk Ha case had attached too narrow a meaning to the characters "增建工程" in the Chinese text which are intended to refer to the words "alteration or addition" in the English text. This had resulted in the judge taking the view, which I think is not quite justified, that there was a discrepancy between the English and Chinese texts of the same legislation. 24. Under s.10B of Cap 1, both the English and Chinese texts of an ordinance are equally authentic and they are presumed to have the same meaning. The court should try to interpret the relevant provisions of the ordinance on this basis. This must be the approach to be adopted. It is only when there is clearly a difference of meaning that the court has to reconcile the two texts. 25. In my view, the intention of the relevant By-laws is clear. A licence is required for the operation of a food business. In an application for a licence, certain particulars must be provided. These particulars include the location, area and dimensions of the space which are allocated to be used in connection with the food business. They must be set out in a plan which has to be approved before a licence is granted. The purpose of By-law 35 is to restrict the operation of the food business to the location, area and dimensions of the allocated space which is set out in the plan which formed the basis of the granting of the licence. Hence, any material deviation from these particulars are prohibited as a contravention of By-law 35 and is punishable as an offence. With respect to the judge in the Tam Yuk Ha case, there is no question of any alteration or addition to the plan or indeed to the premises. What is prohibited is an alteration or addition in respect of the premises which would result in a material deviation from what was originally set out in the plan as showing the scope of the operation of the food business for the purpose of obtaining a licence. For the reasons given by my brother Liu JA, it is quite clear that what was done in the present case was an expansion of the allocated space of the food business which had been set out in the original plan approved as a basis for the granting of the licence. Such expansion had resulted in a material deviation from the particulars shown in the plan. The charge had been proved to the satisfaction of the trial magistrate. I do not think there is any merit in this appeal.
Representation: Mr Patrick Cheung, S.A.D.P.P. & Mr W Wong, S.G.C. of D.P.P. for respondent Mr Dominic Yeung inst'd by M/s L.H. Kwan & Co. for applicant, Tam Yuk-ha |
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