Chow Kui v. Urban Council

CACC000555/1972

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 555 OF 1972

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Coram: Rigby, C.J.

Date of Judgment: 22nd September, 1972.

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JUDGMENT

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1. This is an interesting little point raised by way of case stated from a Decision of a magistrate. The appellant was summonsed for carrying on the business of a food factory (filling of edible oil into containers for sale) without a licence granted by the Urban Council. What was being done was that the appellant was purchasing drums of peanut oil in bulk and thereafter transferring the oil into very much smaller tins for the purposes of retail sale.

2. "Food" is defined in section 2 of the Public Health and Urban Services Ordinance as including "substances used as ingredients in the preparation of food or drink." Peanut oil is a substance very commonly used for the preparation and cooking of food and therefore falls within the definition of "food".

3. A "food factory" is defined in By-law 32 of the Food Business By-laws as meaning any "food business which involves the manufacture or preparation of food for sale for human consumption off the premises."

4. "Preparation", in relation to food, in turn is defined in By-law 3 to include "manufacture and any form of cooking or other treatment or preparation for sale". The question for the magistrate was, there fore, whether the mere act of transferring the peanut oil from the bulk containers into smaller tins with a view to retail sale, constituted the act of preparing food for sale so as to come within the meaning of "carrying on a food factory" and thus requiring a licence from the Urban Council. The learned magistrate took the view that it did constitute carrying on a food factory, and he convicted the appellant of the offence as charged. The question that now arises on this appeal is whether or not he was correct in so doing.

5. I am bound to say that my initial reaction on reading the case was that the contention put forward in the lower court on behalf of the appellant was correct and that the definition "food factory" as meaning "any food business which involves the manufacture or preparation of food for sale" must and could only be construed as meaning some additional process or manner in which the "food" was treated, or adapted, prior to its presentation for consumption, and that the purely mechanical act of pouring peanut oil from one tin into another could not come within the definition of a "food factory" as being a "food business which involves ..... preparation of food for sale." However, on further consideration both as to the literal meaning that must be attributed to the words used in the relevant by-laws and to the intention of the legislation itself, I have come to the conclusion that my original view was wrong and that the magistrate's decision was correct.

6. The Food Business By-Laws are themselves made under section 56 of the Public Health and Urban Services Ordinance. That section empowers the "Authority" (which is in turn defined as "the public officer or public body designated to be the Authority by the provisions of section 3") to make regulations "for securing the observance of sanitary and cleanly conditions and practices and wholesome methods in connexion with -

7. The same section empowers the Authority to require or provide for, inter alia, the "licensing of premises, businesses or persons engaged in or connected with any of the matters specified in paragraph (a)" ... to which reference has already been made."

8. The obvious purpose of the legislation and the by-laws passed thereunder is to ensure that the "Authority" has a measure of control and supervision over persons who deal in any sort of food for sale for human consumption. There must be the obvious possibility that where peanut oil or any other cooking oil is purchased in bulk and transferred to other tins for retail sale, the tins into which it is transferred - or even the actual conditions of transfer - may not be as clean and hygienic as is required.

9. It is a cardinal principle of construction and interpretation of any statute that the words used therein shall be given their ordinary and natural meaning. It is not disputed that the sole purpose and intention of transferring the peanut oil from the larger drums to the smaller tins was for "preparation of food for sale for human consumption off the premises - being the words used in the definition of a "food factory".

10. Mr. Sakhrani, who appeared for the appellant, contended that the learned magistrate was wrong in making reference to the corresponding English legislation, The Food and Drugs Act 1955, wherein "preparation for sale" in relation to food is given a wider definition and expressly includes "packaging". "Package" is defined in the Public Health and Urban Services Ordinance as including "every means by which goods for ..... sale ..... are cased, covered, enclosed, contained or wrapped." Mr. Sakhrani concedes that under that definition, the peanut oil, on being transferred from the drums to the smaller tins, were "packaged". But he contends that the very fact that the United Kingdom legislation found it necessary or expedient to include 'packaging' as coming within the definition of "preparation for sale" raises a necessary and irresistible inference that the mere transfer of oil from one container to another - albeit done for purposes of sale - is not sufficient to come within the meaning of ... "preparation of food for sale" so as to constitute a "food factory". To put it another way, Mr. Sakhrani contends that the words "preparation of food for sale" must have been intended to cover something far beyond the transfer of oil from one tin to another, even though done in anticipation of, or with a view to, sale.

11. I do not think it permissible to interpret a local statute by reference to the legislation of other territories and, in my view, the magistrate was wrong in so doing in this instance. Nevertheless, in my view, for the reasons I have endeavoured to give, both on the literal interpretation of the words "preparation for sale" and giving effect to the meaning and intention of the legislation itself, I am of the opinion that the decision of the learned magistrate was correct and that the appellant was rightly convicted of carrying on the business of a "food factory" without a licence.

Representation:

A.H. Sakhrani (Hon & Co.) for Appellant.

Duffy, C.C. for Urban Council/Respondent.