The Queen v. Hui Siu Sun
Read the full judgment text of HCMA 337/1993 on BabelCite. This High Court CFI judgment.
1. This is an appeal by way of case stated from a determination by a magistrate who dismissed an information which alleged that the respondent did hawk without a licence, an offence contrary to section 83B of the Public Health and Municipal Services Ordinance (“the Ordinance”).
Cites 1 case
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1993, No. MA 337 ------------------ HEADNOTE ------------------ Public Health and Municipal Services Ordinance - hawking - meaning of “street” and “public place” whether the fact that an arcade is within a privately owned complex precludes that location from being a street or a public place. Held :
IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) MAGISTRACY APPEAL NO. 337 OF 1993 ------------------- BETWEEN
------------------ Coram : Hon. Stock, J. in Court Date of Hearing : 4th and 28th June, 1993 Date of Judgment: 30th September 1993 ----------------------- J U D G M E N T ----------------------- 1. This is an appeal by way of case stated from a determination by a magistrate who dismissed an information which alleged that the respondent did hawk without a licence, an offence contrary to section 83B of the Public Health and Municipal Services Ordinance (“the Ordinance”). 2. Section 83B, in so far as is relevant to this appeal, provides that : “(1) No person shall hawk in any street except in accordance with a licence issued under regulations made under section 83A.” Anyone who contravenes the section commits an offence. 3. The prime issue posed by the case is whether that section can encompass a location on privately owned property. The magistrate decided that, for the purpose of section 83B(1), the word "street" did not include a walkway privately owned. I have been told that the issue is one about which there is uncertainty. 4. The facts of the particular case are not in issue. The respondent was selling food on a pedestrian walkway or arcade in front of a shop at the Nam Fung Centre (“the Centre”) in Tsuen Wan. He did not have a licence to do so. The Nam Fung Centre is privately owned. The arcade is a covered walkway on the first floor level of the Centre. On one side of the arcade are shops, in between which are staircases leading from the arcade down to a public bus terminus at ground level. The other side of the arcade is open to the air save for a wall over which can be seen a public road. If one walks along the arcade with the shops and staircases on the right and the wall on the left, one will arrive, before long, at an exit to the Tsuen Wan Mass Transit Railway (“MTR”) Station, which is also at first floor level. I have been told, and it is common ground, that by conditions of sale the owners of the Centre were required to construct the arcade (and another covered walkway which adjoins it) in order to provide a convenient pedestrian route for members of the public from the bus terminus to the MTR station. 5. The respondent was selling his food outside one of the shops of the arcade. The charge against him was that he “on 6th January 1993 in a street, namely the walkway in front of Shop No.70, Nam Fung Centre, did hawk at the said place without a licence granted by the Regional Council.” The case proceeded on the footing that since he had no licence and since he was hawking food, the only issue was whether he was doing so “in … a street.” 6. The magistrate was of the opinion that the definition of “street” in section 3 of the Interpretation and General Clauses Ordinance “does not apply to private land,” and that since the arcade was privately owned, it was not a street for the purpose of section 83B, and was therefore not a place at which an offence under that section could be committed. 7. The questions of law posed for this court are these : “(1) Whether I erred in holding that the definition in section 3 of the. Interpretation and General Clauses Ordinance, Chapter 1 did not apply to private land? (2) Whether I erred in holding that the location was not a street within the meaning of section 83B of the Public Health and Municipal Services Ordinance? (3) Whether I erred in dismissing the information in the circumstances?” 8. I note at the outset that the questions thus posed do not follow from the findings of fact which are particularized in the case. Those findings are at paragraph 4 of the case, and include the following :- “(2) The respondent was hawking fish balls, Chinese pudding, ... on the walkway in front of Shop No 70, Nam Fung Centre. (3) … (4) The respondent hawked at the said location without a licence grantedby the Regional Council”. 9. The questions do not follow from these findings because the word “hawking” presupposes, on its face, that the place at which trading has taken place is a public place. So much should be evident from the definition of “hawker” in section 2 of the Ordinance as :- “... any person who trades in any public place - (i) by selling or exposing for sale any goods...” The inconsistency was not addressed in argument before me, because no one had noticed it, so I caused it to be drawn to the attention of counsel after I reserved judgment. I was ready to proceed to judgment, and to proceed on the assumption that the matter had not been drawn to the attention of the magistrate and that the magistrate had, in finding that the arcade was not a street within the meaning of the section, also found that the location was not a public place, and that he used the word “hawk” in the broad sense of “trading”, and not in the sense envisaged by section 2 of the Ordinance as incorporating trading in a public place. However, both parties requested the opportunity to address me further, and in due course did so. Before judgment was finally delivered, I received still further representations, on this occasion for the respondent and in the form of a number of further authorities. I considered them but did not encourage yet further oral argument. 10. The magistrate expressed his decision to depend upon his interpretation of the section 3 definition. The effect of his reasoning was that if the land or property said to constitute or embrace a street was privately owned it was not a street after all because, whatever other characteristics the area in issue might bear, the section 3 definition excluded any land or property under private ownership. If the magistrate was correct about that, then that would indeed determine the case. If, however, that approach was erroneous, I have then to decide whether this arcade is a street and, further, whether the arcade is a public place for the purpose of section 83B of the Ordinance. The issues posed by the case must therefore be expanded to incorporate that additional question. 11. The Public Health and Municipal Services Ordinance (“the Ordinance”) does not define “street”. Section 3 of the Interpretation and General Clauses Ordinance does : “‘Street’ and ‘road’ mean - (a) any highway, street, road, bridge, thoroughfare, parade, square, courts, alley, lane, bridle-way, footway, passage, tunnel; and (b) any open place, whether situate on land leased from the Crown or not used or frequented by the public or to which the public have or are permitted to have access.” 12. I see no reason to exclude from the meaning of “street” as it appears in section 3 of the Interpretation and General Clauses Ordinance a location privately owned. Had the legislature intended so to restrict it, it would have done so. It might, for example, have distinguished between “street” and “private street” as does the Road Traffic Ordinance distinguish in its definition section between “road” and “private road”. 13. That the fact that a thoroughfare is on privately owned property is not of itself determinative of the issue whether that thoroughfare may properly be called a street is well illustrated by authority. The cases (a handsome proportion of which were decided over 100 years ago) show that, in the absence of express limitation, “street” is to be given its ordinary meaning, and is none the less a street though on private property. Much of the litigation to which I was referred had as its vehicle the Public Health Act 1875, legislation designed to enable local authorities to safeguard public health and utilities, and to control activities which may impact on the general public. The Act defined “street” along lines not dissimiliar to section 3 of the Interpretation and General Clauses Ordinance, and the courts were of one mind, namely, that the fact that the area in respect of which the local authority sought to exercise its powers was on private property did not of itself preclude the location from being a street for the purpose of the Act. 14. So, for example, the Public Health Act 1875 empowered a local authority to carry any sewer under any “street”. In Taylor v. Corporation of Oldham (1876) 4 Ch.D 395, the plaintiffs were the owners of a private road under which the local authority commenced excavation to construct a sewer. They argued that the road was not a “street” within the meaning of the Act, for it had not been dedicated to the public, and that the plaintiffs could at will restrict access. If access could be restricted, how, it was asked, could the private road be a street? It was held that it could and that it would be “monstrously absurd to interpret the Act [being a public health Act] in any other way ...”. (per Jessel, M.R. at p.408). 15. The facts of Marks v. Ford (1880) 45 JP 157 were that in the City of Exeter, there was an unenclosed square in front of an hotel, across which the public could pass. The square was let with the hotel. A bye-law required every driver of a hackney carriage, when he was plying for hire, to station his carriage at one of the stands appointed by the town council. The appellant stationed his carriage on the square - not at an appointed stand - and was convicted of an offence contrary to the bye-law. He argued that the definition of hackney carriage was any vehicle the driver of which stood or plied for hire “in any street” and that he was not in any street, but “standing with his carriage upon the private property of his employer ...”, and was therefore exempted from the bye-law. Section 4 of the Public Health Act 1875 defined “street” to include “any highway, ... road, lane, footway, square, court, alley or passage, whether a thoroughfare or not, ...” and the square which abutted a public road was held to be a street. 16. Lord Coleridge, CJ remarked, at p.158 that :- “The public pass over it when there are no cabs standing there. It appears to me clear that the place comes within the definition of the word street. It is in fact an open square or street. If so, the appellant comes within the terms of the bye-law”; 17. and Field, J. endorsed this view saying :- “not only is this place within the language, but it is within the mischief of the Act.” 18. In Midland Railway Company v Watton (1866)17 QBD 30, the proprietors of a road had erected gates and bars at several places, and took money from persons using the carriageway. The local authority sought to impose street improvement expenses, but the appellants contended that the road was not a street within the meaning of the Public Health Act 1875. The road was, they said, private property which they were entitled to close at any time. 19. Lord Esher, M.R. at p.39, disagreed :‑ “I think that there is evidence that this is a street according to the ordinary meaning of the term. ... There are buildings and rails on one side of it, and on the other side there are in many places continuous rows of houses and shops, ... It is used by public conveyances and by everybody who chooses to go along it subject to the payment of tolls in the case of vehicles, horses, and cattle. In point of fact, nobody using it is ever stopped, whether there is power to stop persons using it or not. I think it would be contrary to common sense and the common meaning of the word ‘street’ to say that such a road as this is not a street. ... I will assume that it is a private road. It seems to me that a private road such as this, with premises on each side of it, the doors of which open into it, and which is used as this has been, is clearly a street within s.150 of the Public Health Act.” 20. And Lopes, L.J., at p.42 held that it was “immaterial for this purpose whether a road is private or public.” 21. It follows, in my judgment, that the magistrate was not justified in coming to his conclusion on the basis of the reasoning he adopted. There is certainly nothing in the Interpretation and General Clauses Ordinance definition of ‘street’ to justify his conclusion, and the authorities to which I have made reference seem to me to make clear that the restricted view is not warranted unless the legislation expressly or by clear implication so provides. 22. That is not to say that the nature or character of the location matters not in determining whether the path or arcade or passage may properly be called a street. In this case, the arcade can, in my view, most appropriately be described as a thoroughfare, which is “a public way unobstructed and open at both ends” (The Shorter Oxford English Dictionary). That it is a public way is amply demonstrated by the facts. It is open to the public; there is no limitation upon its use, and it is in fact used daily by the public at large as a passage from one form of public transport to another. Since it can properly be called a thoroughfare (and, in my opinion also a bridge, a footway, and a passage) it is, by virtue of section 3, a street. 23. The remaining question, therefore, is whether the Public Health and Municipal Services Ordinance expressly, or by implication, limits the type of street to which section 83B applies and, if so, what that limitation is, and whether this arcade is or is not such a street. 24. There is a limitation, and it is that the street must be in a public place. That is so because hawking as defined by the Ordinance is trading in a public place. 25. The Ordinance does not define public place, but section 3 of the Interpretation and General Clauses Ordinance does: “‘Public place’ means - (a) any public street or pier, or any public garden; and (b) any theatre, place of public entertainment of any kind, or other place of general resort, admission to which is obtained by payment or to which the public have or are permitted access.” 26. Here, says the respondent, lies the rub. The arcade, being privately owned, cannot (so the argument goes) be a public street. Nor can the arcade properly be said to represent the type of place described in paragraph (b) of that definition of “public place”. 27. Mr Cheung, for the Crown, sought to distance ‘public place’ in section 83B from the definition in the Interpretation and General Clauses Ordinance. The two read together, made, he said, no sense for the effect of the two would be a prohibition on trading “in a [public street] in a street” or trading, “in a [pier] in a street”. He points to the provision of section 2(1) of the Interpretation and General Clauses Ordinance which would relieve me of applying that definition “where the contrary intention appears ... from the content of any other Ordinance...”. He invites me to apply a different or broad brush meaning to ‘public place’ in the context of section 83B. 28. On the facts of this case, it seems to me to matter not whether the Interpretation and General Clauses Ordinance definition applies or whether, on the other hand, I apply a less restrictive meaning, for which Mr Cheung contends, namely a dictionary or everyday concept, for either way this arcade is, in my view, a public place. 29. The appellant’s desire to steer clear of the definition of ‘public place’ in the Interpretation and General Clauses Ordinance is unnecessary to this purpose. I do not see why this arcade cannot be classified as a public street. It is, as I have said, a thoroughfare. Alternatively, it can properly be called a passage or a bridge. So it is certainly a street. But the facts go beyond that. The arcade is intended for, and is deliberately set aside at the Government’s insistence for, the public’s use at all times, free of any charges or other limitations whatsoever, and particularly for access between public transport depots. Not only is this unrestricted user one of the arcade’s main intended functions, it is also the use to which it is in fact put, and that is so even though members of the public use it as well to gain access to shops and the shopping precinct. In short, it is a public thoroughfare, a public passage, a public bridge - and, therefore, a public street. 30. The arcade might also be said to be “... a place of general resort ... to which the public have ... access” (paragraph (b) of the section 3 definition). Whether that is correct is, in view of my finding that the arcade is a public street, unnecessary for the determination of the questions posed by the case. Even so, I think that the arcade is such a place. 31. In Kitson v. Ashe [1899] 1 QB 425, the appellant used an unenclosed piece of private ground bounded by streets for the purpose of bookmaking, and bookmakers and others habitually used the ground for belting, albeit without the permission of the owners. The appellant contended that the bye-law which rendered use of a “street ... or other place of public resort ... for ... bookmaking ...” an offence did not apply to private property. The private ground was nevertheless said by Lawrance J., at p.428, to be “clearly a place of public resort in the ordinary sense of the words. The public do in fact go there, though, if the owner pleased, they could be turned off: but in the same way people could, under certain circumstances, be turned out of many other places, such as parks and recreation grounds, which are undoubtedly places of public resort.” 32. Channel J., at p.429, asked and answered the following question: “Does ‘other place of public resort’ mean a place to which the public are entitled to go as of right, or a place to which the public do go as a matter of fact? I am of the opinion that the latter is the true meaning.” 33. I am satisfied that a passage or mall deliberately created or set aside for members of the public to use as an access corridor from one form of public transport to another, and which is in fact so used, is a place of general resort, though on privately owned property. 34. It has been suggested that in so far as “public place” includes by the section 3 definition a “place of general resort ... to which the public have access...”, the reach of that definition goes beyond anything that could have been intended by the legislature when enacting the hawker control provisions of the Ordinance. The definition was described by a magistrate, whose decision gave rise to the appeal in Lee Hon v. The Queen [1975] HKLR 470 as highlighting, in the context of the Ordinance, “... a divergence between law and logic, where a Restaurant can simultaneously be described both as private premises and as a public place.” 35. The Full Court was able to dispose of the appeal without having to resolve the “apparent paradox” to which the definition gave rise, suggesting however, at p.474, that : “It may be that there are cases when the legislative context alone will oblige some narrowing of the wide apparent reach of the language used in the Interpretation and General Clauses Ordinance but we do not think that s.83B provides such a case. It is however unncessary to express a final opinion on the point.” 36. Section 83B(1) itself narrows that reach in its effect by its provision that the offence can only be committed if the place is also a street. So, to use the example which the magistrate used, a section 83B offence could not be committed in most restaurants for although a restaurant might be a public place, the circumstances in which it is likely also to be a street within the statutory definition of that word will be rare. That does not however mean that the definition of “public place” in the Interpretation and General Clauses Ordinance is not applicable, but merely that section 83B offences can be committed only in certain types of public places. 37. If, on the other hand, I am not restricted by the section 3 definition of ‘public place’, such (other) common sense or everyday meaning of the phrase ‘public place’ as I would then have to apply is bound in my judgment to embrace the characteristics of this arcade. 38. The authorities lately submitted by the respondent are of more recent vintage than the cases arising out of the Public Health Act 1875. Those early cases, it will be recalled, considered what was and what was not a street in the context of that Act’s definition. The more recent authorities, presented by the respondent, resolved in each case whether a particular location was or was not a public place and have in common that the areas under scrutiny were within, or were adjuncts to, premises privately owned. I shall mention two. 39. In Brannan v. Peak [1948] 1 KB 68, the applicable statutory definition of “public place” was one which envisaged an area “to which the public for the time being have unrestricted access”. It was held that a public house was not such a public place, even though the public were invited to enter. It was not a place to which the public had a right of access. 40. In Lam Shing Chow (Magistracy Appeal No. 183 of 1985) the question was whether a common corridor was a public place for the purposes of section 25 of the Public Order Ordinance. There “public place” was defined as a “place to which .... the public or any section of the public are entitled or permitted to have access.” The common parts of the building were available for the use of occupants and their licencees, and the court concluded that since access by visitors arose in their capacity as licencees and not as members of the public, the corridor could hardly be called a public place. 41. The facts of the case before me are a far cry from those in Brannan and Lam Shing-chow. Those cases demonstrate, if demonstration be needed, that each case will turn on the appropriate statutory definition of “'public place” and on the particular facts of the case. They do not demonstrate that the fact of private ownership is conclusive of the issue whether a locations is or is not a public place. It is certainly a highly relevant and potent consideration, but it is not the only one. 42. My attention has also been drawn to those subsections of section 83B which empower the Commissioner for Transport to set aside streets to be used for hawking purposes and to order, for example, that streets be closed to vehicular traffic. This, it was suggested, implied a limitation on the type of street to which section 83B(1) applies. It could hardly have been contemplated, it was argued, that these powers would extend to ‘streets’ under private ownership. 43. The point does not, in my opinion, affect the result. The Commissioner’s powers under the section are discretionary and it seems inconceivable that his power could reasonably be exercised to set aside a street for hawking where the street, although a public place, was within a complex privately owned. Exercise of the power must presuppose that traders will be, or have been, granted licences to hawk in that location and it is most unlikely that such a licence would be granted in such a street without the owner’s consent. At the same time, it seems to me to be precisely within the contemplation of the scheme of the Ordinance that powers of control be exercised by public health and municipal authorities in respect of areas to which the public have frequent resort and unrestricted access. The Ordinance is one designed to ensure, in so far as is practicable, the maintenance of cleanliness and hygiene in public places, and the protection of the public from nuisance, including obstructions, in such places. Therefore, if the street is within a public place, it sits comfortably with legislative intent that activities upon it which might create a public nuisance or impact adversely upon public health be amenable to control by public authorities, even though the street is within privately owned bounds. 44. In the result, I am satisfied : (1) that a location which is privately owned is not, for that reason, excluded from the definition of “street” in section 3 of the Interpretation and General Clauses Ordinance; (2) that section 83B(l) of the Public Health and Municipal Services Ordinance does not require a definition of "street" different from that section 3 definition; (3) that a location may be a ‘public place’ for the purpose of section 83B of the Ordinance even though it is on property privately owned; and (4) that the arcade which is the location in issue in this case is a ‘street’ and also a ‘public place’ for the purpose of section 83B of the Public Health and Municipal Services Ordinance. 45. It follows that the answer to each of the three questions posed by the case is “yes”. [In accordance with the Crown’s invitation, no order made in respect of magistrate’s determination].
Mr W.S. Cheung, S.C.C. for Appellant. Mr Henry Ma, inst’d by M/s C.W. Yuen & Co., for Respondent. |
Cases cited in this judgment
Further hearings and rulings under HCMA 337/1993