HKSAR v. Hin Lin Yee and Another

HCMA574/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 574 OF 2008

(ON APPEAL FROM TWS1952-1957 OF 2007)

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BETWEEN

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Before: Deputy High Court Judge Line in Court

Date of Hearing:  5 June 2009

Date of Judgment:  5 June 2009

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J U D G M E N T

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1.This is an application for me to certify that a point of law of great and general importance is involved in the appeal in this case, where I dismissed the appeals against conviction.

2.The point is set out in the application for the certificate. I need not repeat it now, but it is basically that the common law defence, so‑called, can apply to a prosecution under section 54(1) of the Public Health and Municipal Services Ordinance.

3.In my judgment, the case of Shun Tak Properties Limited v HKSAR (HCMA1014/2006) made absolutely clear that in legislation of this kind, the common law defence had no application. In a very attractive submission made to me today by Mr Jones, he says that the broadbrush is not good enough; you have to be section-sensitive. Even if you are section-sensitive, my judgment is that, looking at the Ordinance as a whole, especially the existence of section 70, the common law defence can have no application here.

4.Accordingly, I am quite satisfied that there is no point of law of great and general public importance involved. The law has, thankfully, now become well settled, and is back in line with the jurisdiction in England, whence much of this sort of legislation originated.

Representations:

Mr Robert S.K. Lee, S.C., Senior Assistant Director of Public Prosecutions, and Ms Vinci Lam, Senior Public Prosecutor of the Department of Justice, for the Respondent

Mr Douglas Jones, instructed by Messrs Richards Butler, for the Appellants