Kwok Cheuk Kin v. Director of Food and Environmental Hygiene

HCAL 27 of 2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 27 OF 2014

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J U D G M E N T

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A. INTRODUCTION

1.This judicial review turns on the construction of s 4(1) of the Funeral Parlours Regulation (Cap 132AD) (“the Regulation”).

2.In question is whether the Cheung Chau Rural Committee (“the Committee”)[1] in managing a pavilion complex (“the Pavilion”) (including its booking) in Cheung Chau to hold ceremonies to pay respect and farewell to deceased by the deceased’s relatives and friends constitutes the carry on the business of a funeral parlour.  If it does, then it requires a licence to be granted by the Director (the respondent) to do that under s 4(1).  Any person acting in contravention of s 4(1) commits an offence under ss 14 and 15 of the Regulation.

3.The applicant, who is a resident in Cheung Chau, says it does, and the Committee, which has been managing the Pavilion, has been effectively carrying on the business of a funeral parlour without a licence. The applicant also says the Director has acted unlawfully in failing to accede to the applicant’s complaints relating to the same and has refused to enforce the law under s 4(1).  He therefore brings the present judicial review challenging the Director’s failure or refusal to enforce s 4(1).

4.The applicant seeks in his Form 86:

(1) A declaration that the Director’s said failure to act is illegal; and

(2) An order of mandamus directing the Director to enforce s 4(1) against the Committee.

5.The Director opposes the application.  It is the Director’s primary position that, on a proper construction of the meaning of “funeral parlour” under the Regulation, the Pavilion has not been used as a “funeral palour” and thus there is also no question of a business of funeral parlour being carried on there.  

6.The Committee, the 2^nd and 3^rd interested parties[2] have not actively participated in the application[3] or filed any direct evidence herein.

B.  BACKGROUND

7.The evidence as to the kind of ceremonial activities that had taken place at the Pavilion is not in serious controversy[4].  The relevant evidence can be summarised as follows.

8.The Pavilion is located in Tai San Praya Road, Cheung Chau Island.

9.The Pavilion consists of a single-storey squatter hut (“the Squatter Hut”) of about 75 sq m and an outdoor area (“the Outdoor Area”) of about 75 sq m delineated by bamboo scaffolding.  The Squatter Hut is located on unleased government land situated between Nos 125-127 and 129 Tai San Praya Road, and the Outdoor Area is the public area in front of the entrance of the Squatter Hut.

10.The Squatter Hut has concrete and metal walls on the sides and the roof, and metal gates at the entrance.  Inside it, there is no other partition except a washroom of about 3 sq m.  Furniture such as a foldable table, chairs and fan could be found inside it.

11.The Outdoor Area has been observed to be partly enclosed by bamboo scaffolding temporarily from time to time.  The bamboo scaffolding is usually erected about 1 day before the holding of the ceremonial activities and is demolished on the same day after the ceremony.

12.The Pavilion is known to have been used by Cheung Chau residents since 1970s for the subject ceremonial activities for the deceased following traditions and customs of Cheung Chau inhabitants.  There are no records showing activities other than the subject ceremonial activities which have taken place at the Pavilion.  In other words, the Pavilion has effectively only been used for these ceremonial activities.

13.The Pavilion has been managed by the Committee.  The use of the Pavilion is restricted to ceremonies honouring deceased Cheung Chau residents who have lived in Cheung Chau for at least 10 consecutive years.  The Committee is a rural committee exempted from registration under the Societies Ordinance (Cap 151) and exempt from tax under s 88 of the Inland Revenue Ordinance (Cap 112).  Its roles involve the promotion of the welfare of the Cheung Chau community[5].

14.A typical ceremony held at the Pavilion bears usually the following features[6]:

(1) The Pavilion would be booked through the Committee either by the family members of the deceased or by agent.  A person who would like to book the Pavilion for such use has to make a declaration that the deceased had lived in Cheung Chau for at least 10 consecutive years or produce proof provided by more than one Cheung Chau inhabitant who are not relatives of the user;

(2) Usually, the users would use the Pavilion from around 2-3pm to 9-10 am the next day (ie, usually less than 24 hours);

(3) The Committee would only provide the venue for holding the ceremonies and would not provide other services.  For making bookings, the Committee would accept a “donation”[7] to subsidize the utilities, cleaning and maintenance.  The donation was $900 and has been raised to $1,100 since 2013.  It could however not cover all the expenditure of the Pavilion;

(4) The family members of the deceased would arrange the transportation of the coffin from Cheung Chau Hospital or from other places outside Cheung Chau to the Pavilion. Before its arrival at the Pavilion, embalming and other preparations for burial, encoffining or cremation would be completed already.  The coffin carrying the corpse would also be hermetically sealed;

(5) The family members of the deceased may engage agents (such as the 2^nd and 3^rd interested parties) to perform condolence ceremonies at the Pavilion;

(6) After the taking place of the ceremonies (and associated wakes), the coffins are immediately transported to Cheung Chau Crematorium or Cemetery where they are handled by parties licensed under s 92AB of the Public Health and Municipal Services Ordinance (Cap 132) (“the PHMSO”), including the 2^nd and 3^rd interested parties;

(7) Other than the provision of the Pavilion, the Committee is not involved in the ceremonies or the transportation and burial of coffins;

(8) Inspectors from the Food and Environment Hygiene Department (“FEHD”) by way of its regular inspections conducted so far have not identified any significant health or hygiene concerns in respect of the arrangement of the hermetically sealed coffins and these ceremonies generally.

15.Mr Ho, a health inspector of the FEHD, also describes such a typical ceremony held on 6 September 2013 at the Pavilion at paragraph 10 of his affirmation as follows:

“10. On 6 September 2013, I arrived at the Pavilion at around 2:30 p.m. Upon arrival, I saw the Squatter Hut with the gate open and the coffin was placed inside the Squatter Hut. The bamboo scaffolding had been erected on the Outdoor Area. Under the bamboo scaffolding, there was an altar. On the altar, there were a photo of the deceased and some incense stands. I saw 2 people wearing mourning clothes sitting next to the coffin inside the Squatter Hut. Outside the Pavilion, there were wreaths and around 20 chairs placed on the pavement. From around 2:30 p.m. to around 9:30 p.m., I saw some people performing Chinese rituals, playing funeral music and chanting scripture in both the Squatter Hut and the Outdoor Area from time to time. Furthermore, I saw some people who came to the Pavilion for condolence. Most of them went to the Outdoor Area, bowed in front of the altar, burnt incense sticks and then sat on the chairs placed on the pavement. At around 10 p.m., I saw some people burning paper offerings in the incense burner outside the Outdoor Area. At around 11 p.m., I saw people in the Pavilion starting to tidy up and then I left.”

16.Mr Ho further describes in a summary way some 14 ceremonies he had inspected between July 2013 and May 2014 at paragraph 7 of his affirmation as follows:

“7. Condolence ceremonies were taking place at the Pavilion at 14 out of the 43 inspections that I conducted. At these 14 inspections, I observed that the condolence ceremonies took place in both the Squatter Hut and the Outdoor Area and the coffins were placed in the Squatter Hut. I found no embalming or preparation for burial, encoffining or cremation taking place in the Pavilion. Meanwhile, no embalming room, body trolley or refrigerated body store which a funeral parlour would usually be equipped with was found in the Pavilion. No exposure of any corpse or other human remains in the public place, no viewing of the deceased with the coffin opened and no environmental hygiene problems or any other evidence to suggest that the Pavilion was being used as a funeral parlour. I also did not find anything to suggest that the ceremonies were taking place or were being facilitated on any commercial or business basis.”

17.Having set out the common background, I would now move on to look at the issues arising from this application.

C.  THIS JUDICIAL REVIEW

C1.  The issues

18.The Regulation is made under s 123 of the PHMSO.

19.S 4(1) of the Regulation provides as follows:

“Save under and in accordance with a licence granted by the Director, no person shall carry on the business of a funeral parlour”

20.S 3 of the Regulation provides that a “funeral parlour” means a “mortuary” but does not include a list of exceptions set out therein[8]. At the same time, s 2 of the PHMSO provides that a “mortuary” means “any premises set apart or habitually used for the reception, storage or treatment of human remains”.

21.Thus, subject to the list of statutory exceptions, a “funeral parlour” means “any premises set apart or habitually used for the reception, storage or treatment of human remains”.

22.As I mentioned above, the principal debate between the parties is on the proper construction of the meaning of “funeral parlour” and the “carry on the business” of a funeral parlour as provided in the Regulation.

23.Further, at the end of the hearing, Mr Abraham Chan for the Director asks that, even if the court is against the Director in the interpretation of the meaning of “funeral parlour” and “carry on the business” of a funeral parlour, this court should consider only to declare what their respective meaning relevant for the present purposes is, and leave it to the Director (who is entrusted by the legislature to enforce the Regulation) to reconsider (in accordance with the judgment) as to whether the Pavilion used for the ceremonial activities falls within that meaning and whether the Committee or any parties has been carrying on the business of a funeral parlour and thus require a licence.  In other words, the court should not go so far as to grant the reliefs sought in the Form 86 as set out at paragraph 4 above in finding that the Pavilion is a “funeral parlour” and directing the Director to enforce s 4(1) against the Committee.  Mr Pun for the applicant fairly says he is content with this suggestion and approach.

24.In the premises, and in light of the arguments advanced by the parties, the principal issues raised in this application are:

(1) What is the meaning of “reception, storage or treatment of human remains” for the purposes of Regulation and the PHMSO[9]; and

(2) What is the meaning of “carry on of the business” of a funeral parlour under s 4(1) of the Regulation.

25.I will look at these two issues in turn.

C2.  What is the meaning of “reception, storage or treatment of human remains” for the purposes of Regulation

26.There cannot be any dispute that for the purposes of holding the ceremonies, human body contained in coffin had been received and stored (albeit usually for not more than 24 hours as the evidence suggests) at the Pavilion.  There can also be no dispute that human body is a form of “human remains”.  The question is whether this amounts to the “reception, storage … of human remains” for the purpose of s 4(1) of the Regulation.

27.Mr Chan for the Director contends that it does not.  This is so as he says s 4(1) should be construed purposively and in the proper context of the relevant sections under the Regulation and the wider context of PHMSO.  Once looked at it in that proper context and purpose, it is clear, says Mr Chan, that s 4(1) is intended to mean and refers only to the reception, storage of human remains for the purposes of actual or direct preparation for burial, encoffining or cremation.  In other words, s 4(1) concerns with only places where remains are kept and handled for hygienic storage, examination and/or preparation pending burial or other disposal.

28.Counsel’s principal arguments run as follows.

29.It is agreed[10] that nowadays one should adopt a purposive interpretation in construing the statutory meaning of “funeral parlour”.  The statutory language is construed having regard to its context and purpose.  Words are given their natural and ordinary meaning unless the context or purpose points to a different meaning.  Context and purpose are considered when interpreting the words used and not only when an ambiguity may be thought to arise.  The context of statutory provision should be taken in its widest sense and certainly includes the other provisions of the statute and the existing state of the law: HKSAR v Cheung Kwun Yin (2009) 12 HKCFAR 568 at paragraphs 12-13 per Li CJ.

30.As a matter of purposive interpretation, the meaning of “funeral parlour” should be construed by reference to the context of the PHMSO, which is (as provided in the long title) to make provision for public health.

31.Further, s 123 of the PHMSO expressly provides that the Regulation is made to regulate the setting up and regulation of “mortuaries”. Thus, the meaning of funeral parlour as set out under s 4(1) of the Regulation should also be understood and construed in the entire context of the Regulation, ie, ss 4-14.

32.Mr Chan then submits that the statutory regime of the Regulation is that:

(1) Ss 4-6 concern the licensing of funeral parlours (defined under s 3 as mortuaries);

(2) Ss 7-12 are hygiene and layout requirements concerning the reception, treatment and custody of human remains within funeral parlours;

(3) S 13 concerns the maintenance, inspection and custody of registers of human remains received into funeral parlours;

(4) Ss 14 and 15 state that it is an offence to contravene the Regulation.

33.Mr Chan says ss 7-12 form the substantive core of the Regulation, governing the reception, treatment and custody of human remains within a funeral parlour.  Given the purpose of the PHMSO, these provisions draw into focus the substantive regulatory concern of the licensing scheme, which is the proper reception, treatment and custody of human remains from a public health standpoint.

34.Thus, more specifically (counsel continues), the essential regulatory concern lies with the safe handling of human remains before “burial, encoffining or cremation”.  Therefore, says Mr Chan, one finds detailed provisions for embalming and other aspects of the preparation of human remains for burial, encoffining or cremation; with ss 7-8 and 12 addressing general requirements in this connection and ss 9-11 addressing protocols for situations of particular risk to public health (advanced decomposition and quarantinable disease).

35.Given the above structure, it is contended that:

(1) Ss 7-12 are concerned with ensuring proper hygiene in the actual handling of human remains at the stage when they pose a clear and significant threat to public health, ie, before being sealed inside a coffin, buried or cremated;

(2) The provisions before and after ss 7-12 concern the administration and enforcement of the substantive safety requirements as submitted above.  In particular, ss 4 and 5 concern the licensing of funeral parlour businesses, whilst ss 14 and 15 concern the serious consequences (besides the possible loss of a licence) of failing to comply with ss 4 and 11(1).

36.Counsel therefore argues that read in the context of public health and the above statutory regulatory regime, the words “premises or place set apart or habitually used for the reception, storage or treatment of human remains” should be objectively construed to mean receiving, storing human remains for the purposes of actual preparation of that human remains before encoffining, burial or cremation.  This is particularly so, as s 4 precedes ss 7-12 and thus is aimed at those processes taking place before or for the purpose of ss 7-12.  This is also consistent with the overall context and purpose to protect public health in relation to the preparation of human remains when hygiene and public health risk in relation to these matters is at the highest.

37.With respect to Mr Chan, I am not persuaded by his submissions.

38.First, if counsel is correct to say that the words “reception, storage” in the definition of “mortuary” and thus “funeral parlour” are intended only to mean receiving or storing for the purposes of actually preparing the human remains for encoffining or embalming, this would render these words superfluous in light of also the disjunctive word “treatment” used in the definition.  “Treatment” of human remains must include the actual preparation of the remains for encoffining and embalming.  Therefore, any place set apart or habitually used for treatment of human remains would and must include any such place receiving and storing the remains for such treatment, since the human remains have to be “received” and “stored” in that place where they are so “treated”.

39.For these reasons, in my view, objectively looked at, the use of the words “reception” and “storage” disjunctively with the word “treatment” in the definition shows that the legislative intent was to include in the definition a place used for reception or storage of human remains whether or not the remains are to be treated there as well.

40.Second, such a construction is equally consistent with the purpose of the legislation from a public health standpoint. It cannot be said, and there is no such suggestion in any event, that no public health risk at all will be posed if a place is used just to receive or store an already embalmed human body (even in a hermetically covered coffin), especially when there are no regulations imposed on the ventilation requirements and time limit as to how long the body could be stored in that place.  If Mr Chan’s construction was correct, that would mean a deceased body can be placed in a place which is habitually used for that purpose for however long the case may be, and without any restriction or requirements on its ventilation system and sanitary conditions[11].  That in my view cannot be consistent with a public health standpoint.

41.I do not think the references to the elaborate provisions under ss 7-12 of the Regulation dealing predominantly requirements relating to the actual handling and treatment (such as embalmment) of human remains assist the Director:

(1) The mere fact that there are these elaborate provisions do not necessarily in my view mean that the words “reception” and “storage” must be read with reference only to the subject matter dealt with by these provisions.  This is so as these provisions are clearly necessary for the purposes of regulating the provision for “treatment” under the definition.  It is also objectively obvious that the treatment aspects of human remains would involve probably higher and more substantive health risk concerns.  These would demand a more comprehensive and detail set of provisions regulating its activities.  In the premises, the existence of these provisions do not make it objectively obvious that they are intended also to confine or provide the context for the words “reception” and “storage”.

(2) Moreover, s 7(a) (which provides for the lighting and ventilation requirements of a funeral parlour) on its own is equally applicable to and necessary for a place used for receiving and storing human remains with or without the need to then “treat” the body for the purpose of reducing public health risk.  The same applies to s 12 which requires the funeral parlour as a whole to be kept at all times to be clean and in a sanitary condition satisfactory to the Director.

(3) Similarly, s 9(2) provides that a body even is embalmed or encoffined in a hermetically sealed coffin cannot be kept in the funeral parlour for more than 48 hours.  S 9(3) provides that no body shall be retained in a funeral parlour for more than 7 days without the Director’s permission in writing.

(4) All these provisions have nothing to do with whether or not the body is “stored” there for the purpose of preparing the body.

(5) In the premises, I am not convinced that the context of Regulation as whole and in particular ss 7-12 confine the meaning of reception and storage of human remains to the purposes of actually preparing the human remains as submitted by Mr Chan.

42.The Director also submits that there is a common understanding of the meaning of “mortuary” (such as those located in the hospitals) to be places where human remains are kept and handled for hygienic storage, examination and preparation pending burial or other disposal.  It is then submitted that its definition should be read in that context.

43.I am also unable to accept these submissions. As I think correctly submitted by Mr Pun:

(1) Those commonly understood mortuaries are specifically excluded from the definition of mortuaries in the PHMSO.  It therefore cannot simply be said that the definition must bear similar meaning in the same context as those mortuaries.

(2) Further, the requirement under s 6 of the Regulation serves as a clear indication that the Regulation does not only concern the licensing of “mortuaries as commonly understood”.  To the contrary, s 6 requires:

“The license of every funeral parlour shall cause his name and the words ‘Funeral Parlour’ to be posted, in English lettering and Chinese characters not less than 100 mm in height, in a conspicuous place on the outside wall or door of the premises to which his licence relates.” (emphasis added)

(3) There must be a reason for requiring the words “Funeral Parlour” instead of “Mortuary” to be posted.  There must also be an intention behind defining “funeral parlour” as “mortuary” (with the specific exceptions).  Otherwise, Cap 132AD can just be entitled the “Mortuaries Regulation” and its section 4 can just prohibit any person from carrying on the business of a mortuary without a licence.

(4) All this points in favour of an interpretation that a “funeral parlour” is not merely a “mortuary” as “commonly understood”.

(5) S 13(1)(j) of the Regulation[12] further indicates that the Regulation concerns “funeral parlours” as commonly understood, ie the place where the remains of the deceased will be finally disposed of after removal from it (in other words, the place immediately before the funeral procession （出殯）takes place).

(6) One of the obvious objective reasons behind s 13 of the Regulation is that in any premises or places where human remains are received, a register must be kept so that the remains of every deceased person can be traced.

44.Mr Chan then finally says if the meaning of “funeral parlour” bears the wide interpretation as contended by the applicant, it would lead to the following absurd situations:

(1) On the applicant’s analysis, any habitual use of a premises for condolence ceremonies involving even the transient placement of coffins containing human remains constitutes use as a “funeral parlour” under s 4(1).

(2) It follows that, provided the “business” element is also established, anyone using such premises must be licensed.  Critically, this entails that any person or body using a temple, church or other place of religious or cultural practice in Hong Kong for ceremonies with coffins (or other receptacles) containing human remains may require a licence under s 4(1) on pain of possible prosecution and imprisonment.

(3) In a similar vein:

(a) The placement of an urn containing cremated ashes (these being, on the applicant’s literal approach, human remains) within museums or shrines renders such places “funeral parlours”.  This is a strikingly absurd result which serves no discernible public health purpose.

(b) In addition to any legislative or Government leased based conditions, all private crematoria and cemeteries in Hong Kong would further require licences under s 4(1) since, on a literal analysis, they involve the “reception” or “storage” of human remains (normally in exchange for monetary payment).

(4) Plainly, such significant and far reaching restrictions were not intended by the legislature by the means of s 4(1).  Yet they are the necessary result of the reading put forward by the applicant.

(5) On the applicant’s analysis, in addition to requiring a s 4(1) license, a place such as St John’s Cathedral would have conspicuously post a sign reading “Funeral Parlour” as its outside wall or entrance.  The absurdity of the position requires (say Mr Chan) no further elaboration.

45.I am equally not convinced by these contentions:

(1) Whether certain churches or temples holding various condolences ceremonies would be caught by s 4(1) and are required to have a licence must be dependent on (a) whether what factually have been happening have rendered the concerned temples and churches as places set apart or habitually used for receiving or storing human remains, and, even so, (b) whether any relevant person would be regarded as carrying on “the business” of a funeral parlour at those churches or temples.  These questions are factually and evidence related.  It certainly cannot be said (in particular when there is no evidence to so suggest) all churches holding such ceremonies would be caught by s 4(1).  It is thus not a construction question, and the submissions on absurdity resulting from the construction are simply not made out.  In any event, if from a public health standpoint, places that are habitually used to receive and store human bodies should be regulated, I cannot see why it would become “absurd” (as submitted) to be so simply because those places are religion‑related and practising religious ceremonies for that purposes, unless the legislature intends to exclude them expressly[13].

(2) In relation to the cases of cemeteries or crematories, again I accept Mr Pun’s submissions that:

(a) S 2 of the PHMSO separately defines “cemetery”, “crematorium” and “mortuary” to mean distinct places.  They do not overlap: “crematorium” means “any building or place designed or adapted for the purpose of burning human remains”, and “cemetery” means “any place for the time being specified in the Fifth Schedule”.

(b) Further, “cemeteries” and “crematoria” have their own tailor-made regulations, namely: Private Cemeteries Regulation (Cap 132BF), Public Cemeteries Regulation (Cap 132BI) and Cremation and Gardens of Remembrance Regulation (Cap 132M).

(c) S 3 of the Regulation then defines “funeral parlour” to men “a mortuary, but does not include” the specific exceptions set out therein.

(d) When all these read as a whole, on a purposive construction, “cemeteries” and “crematoria” are not intended to be included in the definition of “funeral parlours” or “mortuaries”.

(3) I also accept Mr Pun’s submissions that “human remains” for the present purpose do not include human ashes.  This is so as s 3 of the Public Funeral Halls Regulation (Cap 132BN) defines “human remains” as “the dead body or part thereof of any human being or any still-born child, but does not include ashes resulting from cremation thereof”.  Applying the in pari materia principle of statutory construction, where a term is used without definition in one ordinance, but is defined in another ordinance which is in pari materia with the first ordinance, the definition may be treated as applicable to the use of the term in the first ordinance[14]. In the premises, the submitted absurdity relating to museums or shrines storing urns of cremated ashes does not arise. 

(4) This is particularly so given the definition of “crematorium” under s 2 of the PHMSO means “any building or place designed or adapted for the purpose of burning human remains”.  It makes no sense in that definition that human remains include human ashes.

46.For all these reasons, I reject the Director’s contentions and conclude that the definition of “funeral parlour” under the Regulation includes a place set apart or habitually used for the reception and storage of human remains (which exclude human ashes), whether or not that reception or storage is for the purpose ofactual preparation of that human remains before encoffining, burial or cremation.

47.I now turn to the next question.

C3.  The meaning of “carry on the business” of a funeral parlour under s 4(1) of the Regulation

48.The meaning of “business” is not defined in the Regulation or the PHMSO.  The ordinary use of it has a fairly broad and elastic meaning, the precise shape of which depends on the immediate context.  It has been held in a relevant context that it has a more extensive signification than the meaning of “trade”: Chan Yung Sing v Choi Chung Ching (unreported, HCA 4830/2002, 30 May 2003, Recorder A Ho SC) at paragraph 36, citing Harris v Amery (1865) LR 1 CP 148 at 151 per Willis J, and Rolls v Miller (1884) 27 ChD 71 at 77 per Pearson J.  Lindley LJ in Rolls v Miller, supra, at 88 also observed that the meaning of the word “business” meant “almost anything which is an occupation, as distinguished from a pleasure – anything which is an occupation or duty which requires attention is a business…” (emphasis added).  

49.Further, counsel from both sides accept that the carrying on a business does not necessarily require the making of or the intention to make profit out of the activities concerned.

50.Mr Chan for the Director submits that, given the serious consequences of a breach of s 4(1) of the Regulation, and the principle against doubtful penalisation, the term “carry on the business of a funeral parlour” should be read narrowly as requiring some active and direct participation in the activities characterising a place as a funeral parlour.

51.Without seeking to give an exhaustive list of indicia which would fall within that phrase, given the context of s 4(1) and its purposes of protecting public health, the potential penalisation, and that the various regulations (mentioned above) associated with a funeral parlour impose obligations on the setting up and operation of the funeral parlour as a premises (such as ensuring that the premises is adequately ventilated and lighted, the premises has to be clean and of sanitary condition at all times and that there is a separate room designated for carrying out embalming treatment, etc), in my view, the meaning of “carry on the business of a funeral parlour” includes one where the person doing that have some direct and active participation in the management and/or operation of a funeral parlour. 

52.In other words, a person who has or engages in some direct and active participation in the management and/or operation of a funeral parlour as a premises (with or without the making or the intention to make profit out of that) would fall within the meaning of “carry on the business of a funeral parlour”.  

53.However, I do not accept the Director’s submissions that the meaning must require some direct and active participation in the activities characterising a place as a funeral parlour, although that would also suffice to fall within the meaning.

D.  CONCLUSION

54.For the above reasons, I conclude that for the present purposes:

(1) The definition of “funeral parlour” under the Regulation includes a place set apart or habitually used for the reception and storage of human remains, whether or not that reception or storage is for the purpose ofactual preparation of those human remains before encoffining, burial or cremation.

(2) The meaning of “carry on the business of a funeral parlour” under s 4(1) of the Regulation includesone where the person doing that have some direct and active participation in the management and/or operation of a funeral parlour as a premises (with or without the making or the intention to make profit out of that).

55.I further direct that the Director should reconsider in accordance with this judgment whether (a) the Pavilion has been used as a “funeral parlour” under the Regulation, and (b) whether any enforcement actions under the Regulation need to be carried out against the Committee or any parties in relation to the use of the Pavilion for the ceremonial activities.

56.The applicant therefore effectively succeeds in this application. 

57.There are no reasons why costs should not follow the event.  I will also make an order nisi that the applicant’s costs of this application be paid by the Director, to be taxed if not agreed.  The applicant’s own costs be taxed in accordance with legal aid regulations.  This order shall become absolute 14 days from today unless any of the parties applies to vary it by summons.

58.Lastly, I thank counsel for their assistance.

Mr Hectar Pun, instructed by Ho Tse Wai, Philip Li & Partners, assigned by Director of Legal Aid, for the applicant

Mr Abraham Chan, instructed by the Department of Justice, for the respondent

The 1^st interested party, acting in person, absent

The 2^nd interested party, acting in person, present at part of the hearing by its representative Mr Chau Kwok Keung

The 3^rd interested party, acting in person, absent