HKSAR v. Choi Chau Cheong and Another
Read the full judgment text of HCMA 380/2004 on BabelCite. This High Court CFI judgment was delivered on 6 July 2004.
1. The Appellants were convicted after trial of the following offences: Charge 1 “causing obstruction in a public place” (1 st and 2 nd Appellants); Charge 2 “hawking without a licence” (1 st Appellant); Charge 3 “cooking or heating food for the purpose of hawking without a licence” (1 st Appellant); Charge 4 “hawking without a licence” (2 nd Appellant); and Charge 5 “cooking or heating food for the purpose of hawking without a licence” (2 nd Appellant).
Cites 2 cases
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[English Translation – 英譯本] HCMA 380/2004 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO. 380 OF 2004 (ON APPEAL FROM ESCC NO. 90 OF 2004) ------------------------------------- BETWEEN
------------------------------------- Before: Hon Deputy Judge Pang in Court Date of Hearing: 17 June 2004 Date of Judgment: 6 July 2004 -------------------------- JUDGMENT -------------------------- 1.The Appellants were convicted after trial of the following offences: Charge 1 “causing obstruction in a public place” (1st and 2nd Appellants); Charge 2 “hawking without a licence” (1st Appellant); Charge 3 “cooking or heating food for the purpose of hawking without a licence” (1st Appellant); Charge 4 “hawking without a licence” (2nd Appellant); and Charge 5 “cooking or heating food for the purpose of hawking without a licence” (2nd Appellant). 2.Charge 1 was for an offence contrary to section 4A of the Summary Offences Ordinance (Cap. 228). Charges 2 and 4 were for offences contrary to sections 83B(1), 83B(3) and 150 of the Public Health and Municipal Services Ordinance (Cap. 132). Charges 3 and 5 were for offences contrary to regulations 5(3) and 56(1) of the Hawker Regulation (enacted pursuant to the Public Health and Municipal Services Ordinance (Cap. 132)). 3.Both Appellants now appeal against conviction. Proceedings at trial 4.Two Hawker Control Officers (PW1 and PW2) were performing their duties at the shopping arcade on the ground floor of Tai On Building, Shau Kei Wan. They saw on the walkway in front of Shop A2 a hand-cart which contained congee and noodle for sale. At that time, the 1st Appellant was stirring the content of the congee container with a ladle, and the 2nd Appellant was frying noodle with a pair of chopsticks. The hand-cart occupied an area of approximately 0.6 m x 1.5 m. Upon being questioned, the 2nd Appellant admitted that she did not have a valid hawker licence, whereas the 1st Appellant refused to give any answer. In the end, the two Appellants were arrested for the offences involved in the present case, and the other officers of the Food and Environmental Hygiene Department (hereinafter “FEHD”) took photographs and videos of the scene as records. This is the prosecution’s case. 5.The two Appellants, who acted in person at trial, elected not to give evidence. Nor did they call any witness. It can, however, be seen from their cross-examination that they denied having stirred the congee with a ladle or fried the noodle with a pair of chopsticks. They also raised doubts about whether the location in question was a public place and whether the FEHD officers were entitled to enforce the law there. Furthermore, in his submission, the 1st Appellant said that he was the tenant of Shop A2 and that the FEHD should have used its discretion in dealing with his act of placing the hand-cart outside the shop. 6.In respect of Charge 1, the magistrate held that the hand-cart was placed by the two Appellants on the walkway and might obstruct those who entered the shopping arcade; in respect of Charges 2 and 4, the magistrate held that the two Appellants did sell congee and noodle from the hand-cart; in respect of Charges 3 and 5, the magistrate held that the two Appellants did cook the food for the purpose of hawking. The magistrate also held that the walkway in question satisfied the requirement of a “public place” or a “street” as specified in the respective charges. In other words, the five offences were all established against the Appellants. The magistrate’s interpretation of the law 7.The magistrate provided the following analysis of the nature of the location at which the incident occurred. Charge 1 8.An “obstruction in a public place” must occur in a “public place”. Section 2 of the Summary Offences Ordinance, the legislation from which the offence originates, defines “public place” to “[include] all piers, thoroughfares, streets, roads, lanes, alleys, courts, squares, archways, waterways, passages, paths, ways and places to which the public have access either continuously or periodically, whether the same are the property of the Government or of private persons.” 9.Applying this definition to the location involved in the present case, the magistrate concluded as follows (paragraph 16 of the Judgment):
10.In the same paragraph of the Judgment, the magistrate went on to say:
Charges 2 and 4 11.In paragraph 7 of the Judgment, the magistrate pointed out that two of the elements of the offence of “hawking without a licence” are hawking and hawking in a street. However, the Public Health and Municipal Services Ordinance, from which the offence originates, does not define “hawking” and “street”. In Chung Yuen Fan (HCMA 656/2002), the Court of First Instance held that, in light of the definition of “hawker” under the same Ordinance, “hawking” should mean “selling or exposing for sale any goods, wares or merchandise in any public place”. 12.As regards the meaning of “public place”, the Court of First Instance held that the following definition from the Interpretation and General Clauses Ordinance (Cap. 1) applied: “(a) any public street or pier, or any public garden; and (b) any theatre, place of public entertainment of any kind, or other place of general resort, admission to which is obtained by payment or to which the public have or are permitted to have access”. The Interpretation and General Clauses Ordinance also defines “street” to mean: “(a) any highway, street, road, bridge, thoroughfare, parade, square, court, alley, lane, bridle-way, footway, passage or tunnel; and (b) any open place, whether or not situate on land the subject of a Government lease, used or frequented by the public or to which the public have or are permitted to have access”. 13.On the basis of the cross-application of the above concepts, the magistrate said in paragraph 19 of the Judgment:
14.And in paragraph 20:
15.And in paragraph 21:
Charges 3 and 5 16.In paragraph 8 of the Judgment, the magistrate pointed out that, apart from cooking or heating food, “hawking” is also an element of the offence of “cooking or heating food for the purpose of hawking without a licence”. As the term “hawking” is not defined in the Public Health and Municipal Services Ordinance, from which the offence originates, the meaning of the term is to be ascertained using the abovementioned approach, namely by cross-applying Chung Yuen Fan (HCMA 656/2002) and the relevant definitions under the Interpretation and General Clauses Ordinance. 17.In the end, the magistrate held, in paragraph 23 of the Judgment, that an unmistakable inference could be drawn from the evidence that the two Appellants:
The present appeal 18.The present appeal is brought on a narrow issue. The Appellants indicated from the outset that they do not take issue with the magistrate’s findings of fact regarding matters such as the lack of a licence, the cooking and exposure of food for sale, and the occupying of space causing obstruction. What they complain about is the magistrate’s conclusion on the nature of the location of the incident in question. Charge 1 19.The Appellants contend that there was insufficient evidence to support the finding that the location in question was a “public place” within the meaning of the Summary Offences Ordinance. They submit that, as indicated by the photographs, there are metal poles at the entrance of the shopping arcade at Tai On Building, which serves to show that the owner has not relinquished his title, and therefore members of the public do not have free access to and egress from the shopping arcade. The significant of this is, according to the case of Chan Yuk Chun [1965] HKLR 693, a private place can also be a public place provided that: (1) the public has access to it; (2) that access is of right, whether the right is restricted or unrestricted. 20.The Appellant submits that the video recordings showing people entering and leaving the shopping arcade did not serve to prove anything because there was no evidence to show that those people were owners, tenants, licensees or invitees of Tai On Building. What the Appellants mean is that, as the case of Lam Shing Chow [1985] HKC 162 pointed out, those who lawfully enter and leave a private place do not have to be owners or residents, but if they are merely licensees or invitees, then they are not members of the public and their access to that place is not based on any particular right. 21.Finally, the Appellants submits that, by virtue of the judgment in Chan Yuk Chun, the definition of “public place” under the Summary Offences Ordinance (see paragraph 8) above has to be construed ejusdem generis, and therefore the relevant place can only be the route from one point to another. On the contrary, the location involved in the present case was obviously a shopping arcade, the nature of which would not change merely because it had access to several streets. It was unreasonable for the magistrate to insist that the shopping arcade was a “passage” because it was accessible to and from all directions. 22.I am unable to agree with the Appellants’ arguments above. 23.First of all, the cases that they have cited were decided in the particular circumstances of the cases and cannot therefore be made generally applicable. For example, although Chan Yuk Chun was also concerned about the interpretation of “public place” under the Summary Offences Ordinance, the place involved in that case was a department store. Furthermore, a careful reading of the judgment will reveal that the judge applied the test of the public’s right of access because the department store plainly did not fall within the non-exhaustive definition of “public place” under the Ordinance, and having applied the test, the judge’s conclusion was still in the negative. In other words, to determine whether a place is a “public place” within the meaning of the Summary Offences Ordinance, the starting point is still the definition of the term under the Ordinance. If a place squarely falls within one of the defined categories, then there is no need to consider other factors; otherwise, other factors will have to be considered. It is clear that, under the Summary Offences Ordinance, whether a place is public or private, it must be a place to which the public “have access” before it can qualify as a “public place” (see paragraph 8 above). But it is not clear from Chan Yuk Chun whether this is equivalent to the “right” referred to in that case. On the face of it, the two bear different meanings. 24.As for Lam Shing Chow, it was a case concerning the Public Order Ordinance and had nothing to do with the Summary Offences Ordinance. Furthermore, as the judgment shows, the subject-matter of that case was the corridor on the 12th floor of a private building which was guarded by a watchman on the ground floor and to which members of the public did not have free access. The circumstances of that case were completely different from those in the present case. 25.On the facts of the present case as a whole, the magistrate’s ruling that the location in question was a “public place” under the Summary Offences Ordinance is in my view reasonable and supported by evidence. 26.The particulars of charge show that the subject-matter of Charge 1 was not a shopping arcade but was a passage outside Shop A2 of the arcade. As the sketch plan referred to by the magistrate indicates, via this passage visitors can visit 70 to 80 other shops, the elevators for accessing the upper floors, as well as the several streets that adjoin the arcade. At the same time, residents on the upper floors of Tai On Building, tenants of the shops and visitors have to pass through this passage or other passages in order to leave the arcade or go to other parts of the arcade. And common sense tells us that, whether for the sake of residences’ convenience or for the purpose of increasing the numbers of visitors, the relevant passages must be designed to provide direct access to streets such as Tai Hong Street and Tai On Street. In any event, the “passage” in question did serve to allow visitors to go from point A to point B, and this fully met the requirement of the Ordinance. This, I believe, is what the magistrate meant when he said that pedestrians could pass through the shopping arcade to various places. 27.The metal poles featured in the photographs perform the obvious function of preventing oversized trolleys or objects from accessing the shopping arcade. The movements of pedestrians are not affected. Our daily experience tells us that these metal poles are not directed against pedestrians at all. As the magistrate pointed out, members of the public did, as the video recordings showed, have free access to and egress from the location in question. Put simply, the shopping arcade does not prevent access by pedestrians. No matter who he is, he can freely enter and leave the arcade and move around in the arcade without restriction or interference. This plainly satisfies the requirement of “the public have access” under the Ordinance. 28.The appeal against conviction on Charge 1 must fail. Charges 2 to 5 29.Charges 2 to 5 all relate to offences originating from the Public Health and Municipal Services Ordinance and involve the same concepts, and the complaints levelled against the magistrate’s findings on these charges are the same. 30.It has to be pointed out that the Appellants do not object that the meaning of the elements “hawking” and “street” have to be ascertained by the cross-application of Chung Yuen Fan (HCMA 656/2002) and the definitions of such concepts as “hawker”, “public place” and “street” in the Interpretation and General Clauses Ordinance. (See paragraphs 11 to 15 above.) 31.The Appellants’ complaint is that the magistrate erred in one aspect, namely that he overlooked the restriction laid down in Chung Yuen Fan on the term “street”. The Appellants submit that the court in Chung Yuen Fan expressly stated in the judgment that, in common parlance, a “street” only refers to a passageway of whatever size from one point to another and does not include the “leadways” from buildings on both sides of the passageway; otherwise, the entrance lobby of any building will become a street. On this basis, the Appellants argue that, despite the presence of shops, the location at which the subject incident occurred is the entrance lobby of Tai On Building and therefore cannot be held to be a street. 32.I do not accept this argument. 33.In my view, although the location of the incident does serve as an entrance lobby of a building, its nature goes far beyond this. This is self-evident from the large area of the arcade and the large number of shops that it accommodates. Furthermore, the subject-matter of the charge is the passage outside Shop A2 and not the arcade itself. I have explained (in paragraphs 26 and 27 above) why this location can be construed as a passage or even a passage which members of the public can freely use. These are objective facts which meet the requirements Charge 1 as well as those of the other charges. 34.In summary, the magistrate’s ruling that the location of the offences was a “passage” and also a “street”, “pubic street” and “public place” under the Interpretation and General Clauses Ordinance is in my judgment correct. Nor is there ground for complaining about the magistrate’s verdict of guilty against the Appellants on the offences of hawking without a licence and cooking food for the purpose of hawking without a licence. 35.The Appellants’ appeal against conviction on Charges 2 to 5 must fail. Judgment 36.The Appellants’ appeals against convictions are all dismissed.
Mr Patrick Cheung, Deputy Principal Government Counsel, for the HKSAR. Mr Bernard Chung, instructed by Woo, Kwan, Lee & Lo, for the 1st and 2nd Defendants. Translated by Mr. Edmund Cham, Solicitor |
Cases cited in this judgment
Further hearings and rulings under HCMA 380/2004