Yone Man So v. The Queen

CACC000645/1972

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 645 OF 1972

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Coram: Huggins, J.

Date of Judgment: 24th November, 1972.

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JUDGMENT

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1. Four Informations were laid against the Appellant, but one of them was dismissed and we are concerned with only three of them. Those were for carrying on a business of a restaurant not under and in accordance with a licence granted by the Urban Council; for carrying on a food business of a general restaurant in premises which were not kept clean; and for suffering crockery used in the course of a food business after washing and drying not to be stored in a cupboard rendered proof against the access of dust, insects and vermin while the aforesaid crockery was not immediately required for use.

2. No point has been taken in respect of this last Information whether there was evidence that the crockery was not immediately required for use and the only point which has been taken in respect of all three Informations is whether or not there was sufficient evidence that the Appellant was carrying on the business at all.

3. The fourth Information must be mentioned because that was that, being the occupier of premises, the Appellant failed to provide a proper dust bin in promises which were not provided with a refuse chute. The learned magistrate came to the conclusion that there was not sufficient evidence to show that the Appellant was responsible for the premises in question and he dismissed this Information.

4. The evidence clearly showed that there had been a breach of the by-laws of the Urban Council in respect of each of the Informations, subject to the question whether the Appellant was the person responsible. The evidence was that he was the owner of a ground floor flat which was divided into two parts. In the front part he carried on a jewellery business. In the back part there was a restaurant business being carried on. The two parts of the premises were separated by an iron grille. The Health Inspectors, suspecting that there was an impropriety being carried on in these premises, arranged that three of them would go to the premises and have a meal and then a fourth Inspector came along afterwards as they were about to leave. There is no doubt that the three Inspectors were served as members of the public with food and drink in this restaurant. There was a dispute between the two prosecution witnesses as to whether or not the Appellant was controlling the staff in the back part of the premises. It does not appear to have been appreciated that there was a possibility that the one who did not see this was sitting in such a position that he could not have seen it. This was not investigated and the learned magistrate in this state of the evidence thought that there was a conflict and therefore, he said, he was not satisfied that the Appellant was in fact controlling the staff.

5. The unfortunate part about this case is that so much turns upon certain statements which were made by the Appellant at the time that he was interviewed in the premises and also in the course of the evidence. The premises, as described by the first witness, were the whole flat. The Appellant is said to have admitted to him that he was the proprietor of the business in the premises. Quite clearly there were two businesses in the premises, one business in the front part of the premises and another business in the back part of the premises, and Mr. Sharwood, on behalf of the Crown, very properly concedes that there is no admission by the Appellant that he was in fact the proprietor of the restaurant business at the back. Nevertheless there was evidence that when the man who was alleged by the Appellant to be the proprietor was asked who was the proprietor of the premises he immediately called for the Appellant. That, of course, is no more than hearsay, whatever inference is to be drawn from it.

6. The Appellant's story is a somewhat unusual one and it does not appear to have been rejected in its entirety by the magistrate. He says that he runs in his shop a jewellery business which has twenty employees: his wife in a shop down the road has a similar business where she has five employees, and the staffs of both businesses are, under the terms of their engagement, entitled to free meals which are to be provided by the employers. In order to provide these meals, the Appellant says, he engaged (and I deliberately use the word "engaged") the man, WONG Chiu, and a young boy to provide the meals and to provide them in the premises at the back of the shop.

7. The whole case turns in the event upon the precise terms of the contract between the Appellant and WONG Chiu and the boy. The Appellant's evidence again unfortunately used the word "employ" where I have used the word "engaged", but it is quite clear that this story was that he "engaged" the two, WONG Chiu and the boy, not as servants but as independent contractors. His story is that he paid them each a sum of $200, provided them with rent-free accommodation partly furnished and in return required them to supply food for the staff up to a certain standard: if the staff required anything else above what was on the menu for the day they had to pay for it themselves. In addition the two men were given the privilege of serving the public with food and drink and making such profit as they could.

8. Now, as I say, the question in this case is whether that is, in truth, the contract that was made, because it is, I think, conceded that if Wong and the boy were independent contractors in that sense then they were the persons who were the proprietors of the business and the Appellant was not guilty of the offences. The submission which is made on behalf of the Crown is that there was sufficient evidence from which the conclusion could be drawn that these two men were in fact, in the words of the Appellant himself, "employed". There is no doubt at all that this important question was clearly before the magistrate. The closing note made of the argument on behalf of the Appellant before the magistrate is in two lines:

so that, as I say, the point was left very clearly to him. The learned magistrate gave then some brief notes of judgment which he subsequently extended into his Statement of Findings, but, as Mr. Fung has fairly said, these notes give a very clear picture of how the learned magistrate's mind was working. He said:

Now, interrupting for one moment, that appears to be an indication that the learned magistrate was prepared, at least for the purposes of argument and for the purposes of this case, to assume that the Appellant's evidence was true. He continued:

"He employs Wong Chiu to carry on in his (Defendant's) premises the business of supply of certain basic meals or refreshments without charge, and other food at prices Wong Chiu fixes. It is plainly an integral part of the employment of Wong that he can supply and charge for meals. The fact that Defendant does not concern himself with the prices does not receive profits on those meals, is immaterial. Defendant is intimately bound up as proprietor. The food business is part of Defendant's overall business as the terms of employment of staff include the right to the basic free meals, and it is inconceivable that Defendant could employ Wong for $200 only plus one boy at $200, and have the free basic meals supplied to a staff of over 20 for a month at no further cost to Defendant unless implicit in and authorised by Defendant was an arrangement whereby Wong could charge the staff and others for meals. Indeed, Defendant quite frankly admitted this was the arrangement but sought to exclude his responsibility on the basis that Wong Chiu got the profits. But does he get them all? Defendant owns the premises tables and chairs. Defendant pays for electricity as there is no separate meter for the dining premises. Defendant has over 20 staff supplied with 2 basic meals a day and morning and afternoon teas for a month at a cost of $400 paid by Defendant to Wong Chiu and the boy as wages. Wong Chiu makes profits if he can on what he sells (to both staff and others). The profit, while not explicit in terms of ascertainable cash, for Defendant. lies in the facilitating of the feeding of 20 to 25 staff at a cost of $400 per month, with 2 basic meals and morning and afternoon tea or coffee daily. Perhaps this should be described as an advantage, rather than profit. However, it is unnecessary to determine whether Defendant makes a profit. He is the proprietor within the definition of Regulation 3(1). He cannot hide behind the facade of Wong Chiu getting the 'profits' in circumstances where he employs both on the understanding that Wong Chiu can charge Defendant's staff and others for meals beyond (in the case of the staff) Defendant's stipulated basic meals. It does not avail Defendant to say he leaves all the management to Wong Chiu or that Wong Chiu is in charge. Defendant is the proprietor and as such must be deemed to be carrying on the food business invelving sale of meals and unbottled non-alcoholic drinks - that is, a restaurant".

9. The reason I have read the whole of that is to emphasise the repetition of the word "employ", and it is clear in my view that the learned magistrate was greatly affected by the use of the word by the Appellant himself, but it is not sufficiently clear that he has appreciated that the word can be used in relation to an independent contractor. It is, I think, enough for me to say in this case that, having read the papers with the utmost care and having heard the arguments on both sides, I am not satisfied that it is safe that these convictions should stand. I think that it was on the assumption that the Appellant was telling the truth that the learned magistrate decided the case, and, if the Appellant was telling the truth, then WONG Chiu and the boy were independent contracters - and if they were independent contractors it is, as has been conceded, not possible for the Appellant to be convicted on these charges. The prosecution might have succeeded if other evidence could have been called to establish with greater precision what was the relationship between the Appellant and WONG Chiu, but on the evidence before the court I think that the convictions cannot stand.

10. For these reasons the appeal is allowed, the convictions are quashed and the fines must be repaid.

24th November, 1972.

Representation: