HKSAR v. Asaduzzaman

HCMA 314/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MAGISTRACY APPEAL NO. 314 OF 2009

(ON APPEAL FROM KTS 16955 OF 2008)

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Before : Hon Stock VP, Lunn J and Saw J in Court

Date of Hearing : 24 June 2010

Date of Judgment : 24 June 2010

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J U D G M E N T

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Hon Stock VP (giving the judgment of the Court):

1.On 7 May 2010 this Court delivered judgment following referral to this Court by Deputy Judge Geiser of an appeal from a magistrate who had convicted the appellant for contravention of s. 30AA of the Food Business Regulation, Cap. 132 and by that judgment we dismissed the appeal.

2.There is now before us a notice of motion pursuant to s. 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, seeking from this Court a certificate that a point of law of great and general importance is involved in the decision of the court. 

3.The two questions proposed for certification are these:

(1) Whether s. 30AA(1) of the Food Business Regulations, is ultra vires s. 56(1)(b) of the Public Health and Municipal Services Ordinance, Cap. 132; and

(2) whether s. 30AA infringes Article 39 of the Basic Law in implementing Article 26 of the International Covenant on Civil and Political Rights (“the ICCPR”).

4.As to the latter question, we point out that Article 26 of the ICCPR was not prayed in aid in the argument before us; argument concentrated, in that particular part, on the question of proportionality but, be that as it may, we decline to certify either question.

5.The application is accordingly dismissed.

Mr Robert S K Lee, SC, DDPP & Ms Betty Fu, PP of the Department of Justice for the Respondent

Mr Phillip Ross, instructed by Messrs Haldanes, assigned by Director of Legal Aid, for the Appellant