HKSAR v. Maxim’s Caterers Ltd

HCMA 95/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 95 OF 2009

(ON APPEAL FROM ESS 33640/2008)

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BETWEEN

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Before: Deputy High Court Judge E Toh in Court

Date of Hearing:  20 May 2009

Date of Judgment:  31 July 2009

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J U D G M E N T

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1.This is an appeal by way of Case Stated from the ruling of the learned magistrate that the information had been laid out of time.

2.The information was laid on 18 September 2008 against the Respondent for an offence under s.52(1) and s.150 of the Public Health and Municipal Services Ordinance, Cap. 132, that on 18 March 2008 the Respondent sold to the prejudice of the purchaser an article of food which was not of the substance demanded by the purchaser.

3.In the court below, Counsel for the Respondent had submitted as a preliminary issue that the information was laid out of time. The learned magistrate ruled in favour of the Respondent.

4.Upon application by the Appellant to the learned magistrate to state a case pursuant to s.105 of the Magistrates Ordinance Cap. 227, the following questions were settled and signed by the learned magistrate for the Court of First Instance:

(1) According to the correct interpretation of s.26 of the Magistrates Ordinance, Cap. 227, should the date of the offence be included?

(2) Having considered the correct interpretation of s.26 of the Magistrates Ordinance, Cap. 227, need I not consider s.71 of the Interpretation and General Clauses Ordinance, Cap. 1?

(3) Was this information laid out of time?

(4) Whether I erred in dismissing this information?

Appeal

5.It is the Appellant’s case that s.26 of the Magistrates Ordinance, Cap. 227 should be read with s.71(1) of Cap. 1.

6.S.26 of the Magistrates Ordinance provides that:

“26. Limit of time for complaint or information

In any case of an offence, other than an indictable offence, where no time is limited by any enactment for making any complaint or laying any information in respect of such offence, such complaint shall be made or such information laid within 6 months from the time when the matter of such complaint or information respectively arose.”

7.S.71(1)(a) of Cap. 1 provides:

“(1) In computing time for the purpose of any Ordinance-

(a) a period of days from the happening of any event or the doing of any act or thing shall be deemed to be exclusive of the day on which the event happens or the act or thing is done; …”

8.As stated in Halsbury’s Laws of Hong Kong Volume 9 (2007 Reissue) at paragraph [130.565] note 1:

“1 Under the Magistrates Ordinance (Cap 227) s 26, where the time is not limited by any other enactment, the information must be laid or the complaint made, within six months from the time when the matter of such complaint or information arose (see also [130.564]). At common law, although the issue is essentially one of statutory construction, time is usually calculated on the basis of excluding the day upon which the offence occurred: Radcliffe v Bartholomew [1892] 1 QB 161, DC (Eng). This is also the position under statute law whereby pursuant to the Interpretation and General Clauses Ordinance (Cap 1) s 71(1)(a), unless the statute creating the time limit provides otherwise, the date on which an event occurs or an act takes place does not count in calculating whether the time limit has been exceeded …”

9.It is thus, clear that at common law, the computation of time does not include the day upon which the offence occurred, and the Appellant argues that as a matter of statutory construction, it also must be the same, citing s.71(1) of Cap. 1.

10.Although I agree, with Respondent Counsel’s argument that s.71(1) of Cap. 1 is relevant clearly to the computation of a period of days rather than weeks, months or years (see Li Tat Kong v Official Receiver & Another [2001] 1 HKC 207), I do not accept that it, therefore, by implication means that the common law provision has been in any way abrogated by the absence of wordings of weeks, months or years in Cap. 1.

11.I consider that although s.26 of the Magistrates Ordinance did not specifically include the day the offence was committed, the legislature must have considered that the common law computation of time must still be relevant.

12.Therefore, taking the wording of s.26 of the Magistrates Ordinance and the common law background, I can only conclude that the words “within 6 months from the time when the matter of such complaint or information respectively arose” does not include the day of the offence.

13.The answers to the 4 questions are:

(1) No.

(2) Not necessary to consider s.71 of Cap. 1.

(3) No.

(4) Yes.

The appeal is allowed and costs order set aside and the case is remitted to the learned magistrate for hearing.

14.Counsel for the Respondent had attempted to argue the burden of proof of the date of the laying of the information, and the issue of expeditious prosecution. These are matters for the learned magistrate and outside the ambit of this appeal.

Mr Patrick Cheung, SADPP and Ms Winnie Lam, SPP, for the Appellant

Mr Liu Yuen Ming, instructed by Messrs Raymond T L Tse & Co, for the Respondent