The Hong Kong, Kowloon and New Territories Funeral Business General Association Ltd v. The Queen
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IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 184 OF 1973 -------------------- BETWEEN
-------------------- Coram : Pickering, J. Date : 19th April 1973. ------------------------ J U D G M E N T ------------------------ 1. The defendant company was the subject of two separate informations, relating to two separate premises, alleging that in each of those premises it had carried on the business of a funeral parlour otherwise than under, and in accordance with, a licence granted by the Urban Council, and contrary to Bye-law 4, sub-s.(1) of the Funeral Parlour Bye-laws made under s.123 of the Public Health and Urban Services Ordinance, Cap. 132. After a hearing, the company was found guilty upon both those informations and fined $500 upon each. In addition, a Closure Order was made by the learned magistrate in respect of both premises. 2. In this appeal Mr.Waung, for the defendant company, has argued as his primary contention that there was no positive evidence of human remains in either of these premises. The significance of that is that a funeral parlour is defined as a mortuary and a mortuary is defined as a place “set apart or habitually used for the reception, storage or treatment of human remains”. 3. Mr. Waung has urged that much of the evidence of the ninth prosecution witness as to what he saw on these premises was hearsay, and that is entirely true, but, stripped of all hearsay, what was seen - and on several occasions - was a coffin, persons who were presumably relatives of the deceased and, in some cases, an actual service in progress. Counsel has urged that no body was ever seen and that even had it been the witnesses were not medically qualified to say whether that body was alive or dead. He has suggested that the contents of the coffins could, indeed, have been waxworks. I am aware that in certain areas of the world there exists a religious order, the custom of the members of which is to sleep in their coffins each night as a grim reminder to themselves of their mortality. I am not aware that that practice has spread to Hong Kong. It is in any event an eccentric practice, and I do not believe that the inhabitants of New Street, Hong Kong, indulge in it. The evidence as to the existence of human remains was certainly circumstantial evidence. That being so, it is necessary that guilt should not be merely a reasonable inference but the only possible inference. On the evidence which emerged I have no hesitation in saying that the only possible inference was that these coffins contained human remains. 4. It has further been argued that it has not been proved that the defendant company was properly sued in that there was no reference to it in the evidence as a limited company and that the signs on the two premises, whilst containing the name of the company, stopped short at describing it as a limited company. The fact remains that it was the limited company which was summonsed and it was the limited company which appeared and defended in the court below on the basis that it had a connection with these premises. The argument that the company was the wrong body to be sued was not raisedin the court below, and for the learned magistrate to have taken that point himself it would have required him to accept the remarkable coincidence that two companies, one a limited company, the other a firm but having the same name as the limited company, were both concerned with funeral arrangements in both sets of premises. I find no merit in the contention that counsel further argued that Bye-law 4, sub-s.(1) contemplates the licensing of premises and not of persons. The learned magistrate dealt with this situation in his Statement of Findings where he pointed out that:
The magistrate went on to point out that:
I would adopt what the learned magistrate has said there as being the true position. 5. It was further suggested by counsel that the onus of proof in regard to the non-existence of any licence was not upon the defendant company but was upon the Crown. Counsel strove with some ingenuity, but from a poor vantage position, to advance this argument which, in my view, cannot sustain the impact of the Criminal Procedure Ordinance, s.94, sub-s.A. 6. In regard to the Closure Orders, counsel relied upon the same points which he had relied upon in regard to the convictions. For the reasons I have already mentioned those arguments have no more validity in regard to the closure than they have in regard to the convictions. It was further complained that the magistrate did not grant an adjournment when the application for closure was made, although no previous notice of such an application had been given to the defendant company. As it seems to me the only ground upon which the magistrate could have refused to make a Closure Order, s.128, sub-s.(1) of the Public Health and Urban Services Ordinance being mandatory, would have been that the premises were also used for the purpose of human habitation. That was the only ground unon which the magistrate might have refused to make a Closure Order. It was never suggested to him that the premises were so used, and I am far from persuaded that the particular “inhabitants” of these premises rendered them a place of “human habitation”. 7. The appeal is dismissed. Waung (Gunston & Chow) for Appellants Harte, C.C., for Respondent. |