FACC No 1/2016 (Crim)

IpsofactoJ.com: International Cases [2016] Part 7 Case 9 [CFA]


COURT OF FINAL APPEAL, HKSAR

Coram

Hong Kong SAR

- vs -

M.F. Tse

(謝文飛)

Chief Justice Geoffrey Ma

Justice R.A.V. Ribeiro PJ

Justice Robert Tang PJ

Justice Joseph Fok PJ

Justice Murray Gleeson NPJ

5 JULY 2016


Judgment

Chief Justice Ma

  1. The appeal was dismissed by the Court at the conclusion of the appellant's submissions. I agree with the Judgment of Mr Justice Fok PJ containing the reasons for doing so.  In relation to costs, since the appeal to the Court was legally aided, no order was made in relation to the costs of the appeal to the Court of Final Appeal. The respondent, however, asks for his costs in relation to the trial and to the appeal in the Court of First Instance. Deputy Judge Yau held there be no order as to these costs on account of the respondent having by his conduct brought suspicion on himself. We see no reason to disturb that order.

    Justice Ribeiro PJ

  2. I agree with the reasons given by Mr Justice Fok PJ for dismissing this appeal.

    Justice Tang PJ

    Introduction

  3. We dismissed the prosecution’s appeal at the conclusion of the hearing and these are my reasons.

  4. On 15 September 2014, on the footbridge outside Fou Wah Centre, Tsuen Wan, New Territories, there was a cardboard structure, on which there were attached four posters, three measuring 0.3 m x 0.42 m and one 0.21 m x 0.3 m. The footbridge was on Government land, and the defendant was seen by a senior foreman of the Food and Environmental Hygiene Department (“FEHD”) promoting i-CABLE’s service plans to a woman next to the cardboard structure. He was charged with the offence of displaying the posters without the written permission of the Authority, contrary to ss 104A(1)(b), 104A(2) and 150 of the Public Health and Municipal Services Ordinance, Cap 132.

  5. Section 104A provides:

  6. (1)

    No bill or poster shall be displayed or affixed –

    (a)

    on any private land, except with the written permission of the owner or occupier thereof;

    (b)

    on any Government land, except with the written permission of the Authority.

    (2)

    A person displaying or affixing a bill or poster in contravention of subsection (1) commits an offence.

  7. Section 150 deals with the penalty and provides that where the offence is a continuing offence a daily fine may be levied for each day that the offence has continued.

  8. The defendant was convicted after trial by Ms Lau Suk-han, Special Magistrate and was fined $2,000.00. On appeal, the defendant’s conviction was quashed by Deputy Judge Yau. He was unrepresented on both occasions. In brief, the learned judge quashed the conviction because, he was of the view that since the posters “had already been ‘displayed’ at the place in question before (the defendant’s) arrival”, even if the defendant had[1]:

  9. conducted promotional sales activities for i-CABLE in the proximity of the posters displayed there on that day, (he) would not regard him as the person who ‘displayed’ the posters.

  10. On 1 February 2016, the Appeal Committee gave leave to appeal on the following certified question:  

  11. In the context of a prosecution for an offence of displaying a poster on Government land without written permission of the Authority (contrary to sections 104A(1)(b), 104A(2) and 150 of the Public Health and Municipal Services Ordinance, Cap. 132), what act or conduct by a defendant must the prosecution prove in order to satisfy the element of ‘displaying’?

  12. It was the common assumption of the parties that the posters had been displayed contrary to s 104A and that the sole question we had to resolve was whether the defendant’s conduct amounted to displaying the posters. We do not have the dimensions of the cardboard structure but a photograph was available. The cardboard structure rested on its own weight and was not attached to the footbridge. We have not had the benefit of adequate submission on the true meaning and effect of s 104A and I express no view on whether, on the facts of this case, the posters could be said to have been displayed on any Government land[2] within the meaning of s 104A.[3]  I confine myself to considering whether the defendant by conducting promotional activities in close proximity to the posters could be said to have “displayed” the posters. 

    Background

  13. The uncontroversial fact was that the posters contained words, i-CABLE logos and particulars of the monthly service plans. The defendant was standing with a woman[4] “less than half a foot away from the cardboard structure”,[5] and “(he) was then wearing a purple and white top with an ‘i-CABLE’ logo printed on the front and back. The ‘i-CABLE’ logo on his top was identical to the one displayed on the posters.”[6]

  14. The prosecution case was that because the defendant was promoting sales for i-CABLE within a reasonable distance of the posters, the defendant should be regarded as a person who was displaying the posters.[7]

  15. The defendant denied that he was there promoting the sale of i-CABLE service but this explanation was rejected by the learned Deputy Judge,[8] and I proceed on the basis of the learned Deputy judge’s finding.

    Legislative History

  16. Section 104A and related provisions were introduced pursuant to the Public Health and Urban Services (Amendment) Bill 1980 (“the bill”) which was designed “to make better provision for the control of bill-posting and to make a consequential amendment to the Summary Offences Ordinance.”[9] The amendment was to s 8 of the Summary Offences Ordinance by removing from s 8 the offence of “(affixing) any poster or other paper against or upon any building, wall, fence or paling”.[10]

  17. The reason and purpose of the amendments could be gathered from what the Secretary for the Environment said at the second reading of the bill:

  18. The existing controls over environmental nuisance caused by the indiscriminate posting of bills and posters are both limited in scope and ineffective. Although permission from the owner or occupier of land is necessary before a bill or poster can be displayed on that land, there is no provision in the law which requires the bill or poster to be maintained in a clean and tidy condition. Besides, enforcement is difficult since the offenders must be caught in the act of putting up the bill or poster before they can be prosecuted. This also means that the liability for the offence falls only on the bill-poster and not on other persons who could be regarded as being equally responsible, such as the employer of the bill-poster or persons whose goods or services are being advertised.

    ....

    In order to consolidate and strengthen the control over the posting of bills therefore, it is intended in this Bill, in another sense (laughter), to make it an offence for any person to display any bill or poster on Crown or private land without the written permission of the Authority or of the owner or occupier of the land. It also provides that any bill or poster being displayed must be maintained in a clean and tidy condition. Failure to do so constitutes an offence and the Authority is empowered to remove any such posters and to recover the cost of removal from the offenders.

    Furthermore, the liability for the offences and any removal costs will fall not only on the bill-poster but also, in the case of unauthorized poster display, on the employer of the bill-poster and the person who benefits from the display of the poster; and, in the case of failure to maintain the poster in a clean and tidy condition, on the owner or occupier of the land and the person whose goods or services are advertised. This is considered necessary to ensure that the liability for these offences will fall on those persons who should be held responsible for the display and maintenance of the bill or poster. On the other hand, to protect those who might be concerned from being unfairly penalized, a person will not be liable for the offence, or the removal costs, if he can prove that the poster has been displayed without his knowledge or consent.

  19. Briefly stated, the amendments sought to create an offence of displaying a bill or poster,[11] catch persons responsible for its display, impose a duty on the person displaying the bill or poster to maintain it in a satisfactory condition and enable the Authority to remove offending bills or posters and recover the costs of any offending display.

  20. I have already set out s 104A in full. I turn to the other provisions which were introduced at the same time, namely, ss 104B, 104C, 104D and 104E. All but s 104D require no more than a brief summary.

  21. Section 104B requires any bill or poster displayed on private or government land to be maintained in a satisfactory condition, failing which a person commits an offence unless the bill or poster is removed within the period specified in the notice served on him/her by the Authority.

  22. Section 104C enables a bill or poster not properly maintained to be removed by the Authority and the costs or potential costs of such removal to be recovered as a civil debt.

  23. Section 104D is set out in full below:

  24. (1)

    Where a person commits an offence against section 104A(1) the following persons shall be guilty of that offence in the same manner and to the same extent as if they had personally committed it -

    (a)

    any other person who uses the first-mentioned person to display or affix the bill or poster; and

    (b)

    any person whose goods, trade, business or other concerns are given publicity by the bill or poster:

    Provided that a person referred to in paragraphs (a) and (b) shall not be guilty of an offence under section 104A(1) by reason only that he uses the person to display or affix the bill or poster or that his goods, trade, business or other concerns are given publicity by the bill or poster, if he proves that it was displayed or affixed without his knowledge or consent.

    (2)

    For the purposes of sections 104B and 104C a person shall be deemed to display a bill or poster if-

    (a)

    the bill or poster is displayed on land of which he is the owner or occupier; or

    (b)

    the bill or poster gives publicity to his goods, trade, business or other concerns:

    Provided that a person shall not be guilty of an offence under section 104B or be liable for the cost of removal under section 104C by reason only that the bill or poster is displayed on land of which he is the owner or occupier, or that his goods, trade, business or other concerns are given publicity by the bill or poster, if he proves that it was displayed without his knowledge or consent.

  25. Section 104E contains definitions as well as identification of the Authority responsible for different Government land.[12]

    Discussion

  26. As indicated above, the issue before us is whether, assuming, but not deciding, that the four posters had been displayed contrary to s 104A, the defendant’s conduct amounted to a display of those posters. Mr Martin Hui SC who appeared for the prosecution relied on s 19 of the Interpretation and General Clauses Ordinance, Cap 1 and submitted that we must give the word “display” such “fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit.”  In the same spirit,  this court explained in HKSAR v Cheung Kwun Yin (2009) 12 HKCFAR 568 at 574:

  27. 12.

    The modern approach is to adopt a purposive interpretation. The statutory language is construed, having regard to its context and purpose.

  28. In this regard, I find the words of the then Secretary for the Environment helpful.  His words showed quite plainly that one of the purposes, indeed, one might say, the primary purpose of s 104A, was to address the then deficiency of s 8 of the Summary Offences Ordinance, which in effect required the bill-poster to be caught red-handed.  At the same time, s 104D was enacted to facilitate the prosecution of persons responsible for the display under s 104A.

  29. Compare that with the prosecution’s suggested interpretation set out in para 59 of its case.  This reads:

  30. 59.

    With regard to the question of law certified, the Respondent respectfully submits that the answer can be:

    In the context of a prosecution for an offence of displaying a poster on Government land without written permission of the Authority (contrary to sections 104A(l)(b), 104A(2) and 150 of the Public Health and Municipal Services Ordinance, Cap. 132), in order to satisfy the element of “displaying” the prosecution must prove that a defendant has either:

    (a)

    unfurled, unfolded to view, exposed to view, or made visible or manifest the poster or done any act(s) or conduct(s) concerned directly with the physical setup of the poster; or

    (b)

    showed or exhibited; or described in words or explained the contents of, the poster which has already been on display without permission; or any other act(s) or conduct(s) concerned with the continuous display of the poster without permission.

  31. Mr Hui confirmed it was not the prosecution case that the defendant had used someone else to affix or display the posters and we are not concerned with s 104D(1)(a). In other words, he was not responsible for the actual affixing or consequential display.

  32. The prosecution’s formulation can give rise to important considerations which do not arise in this case. I say nothing about para (a) in the prosecution’s suggested answer. The proper ambit of the offence created by s 104A not having been addressed in the submissions, it would be inappropriate for me to attempt to answer the certified question. Nor would I consider the remaining formulation at any length. Suffice it to say, in my view, for the purpose of this appeal, the word display could not be stretched to cover the facts of this case, namely, that the defendant by promoting the business of i-CABLE in close proximity to the posters was thereby displaying the posters.  Mr Hui submitted that s 104A would be robbed of much of its force unless we were to read it to cover someone like the defendant. I think it is clear the primary target of “display” in s 104A is the person who caused the posters to be displayed such as the person whose business was given publicity by the posters.  Mr Hui said prosecution of i-CABLE would be difficult.  I express no view about that but that is no reason to give “display” a meaning it does not bear.  Here, the defendant who had neither affixed nor caused the posters to be displayed could not be regarded as displaying the posters.  Mr Hui submitted that any person who “described in words or explained the contents of, the poster which has been on display without permission” should be regarded as displaying the posters.  It is not clear from the formulation whether the prosecution must prove that the defendant knew that the posters were displayed without permission.  But it is unnecessary to explore the formulation further, like Fok PJ, whose judgment I have had the benefit of reading in draft, I do not accept that the word “display” construed having regard to its context and purpose could extend so far.

  33. For these reasons, I dismissed the appeal.

    Justice Fok PJ

    A. Introduction

  34. It is an offence to display or affix a bill or poster on private or Government land without relevant written permission by reason of s.104A of the Public Health and Municipal Services Ordinance.[13] This provides that[14]:

  35. (1)

    No bill or poster shall be displayed or affixed -

    (a)

    on any private land, except with the written permission of the owner or occupier thereof;

    (b)

    on any Government land, except with the written permission of the Authority.

    (2)

    A person displaying or affixing a bill or poster in contravention of subsection (1) commits an offence.

    The offence is punishable by a fine at level 3 and a daily fine of $300 is applicable for each day during which it is proved to the satisfaction of the court that the offence has continued.

  36. The present appeal raises the question of what act or conduct the prosecution must establish in order to satisfy the element of displaying such a bill or poster. Specifically, is the word “display” to be given a wide meaning to include the conducting of promotional sales activities by reference to the bill or poster, as contended by the prosecution, or is it to be given a narrower meaning than that, as held by the Judge?  And if a narrower meaning, what meaning should be given to it?

    B. The relevant background facts and proceedings below

  37. At the time of the alleged offence, the respondent was an employee of i-CABLE Communications Limited (“i-CABLE”). He was observed, by a foreman of the Food and Environmental Hygiene Department, to respond to a woman’s inquiries concerning broadband service installation plans for village houses next to a cardboard structure on which there were four posters (three of A3 size and one of A4 size) advertising i-CABLE’s services. The place where he was doing so, and where the posters were situated, was on a Government footbridge in Tsuen Wan. The cardboard structure bearing the posters had been placed there without the permission of the relevant authority.[15] He was issued with a fixed penalty ticket for the offence.

  38. The Magistrate convicted the respondent of the offence under s.104A(1)(b) and (2) and fined him $2,000.[16] The Magistrate did not explain what she understood the word “display” to mean but the Judge understood that, notwithstanding her conviction of the respondent, she gave it a narrower construction than that put forward by the prosecution.[17]

  39. On appeal to the Court of First Instance,[18] the Judge found that the respondent did not set up the cardboard structure with the posters in question and that it had been placed on the footbridge before his arrival[19] but upheld the Magistrate’s finding that the respondent was promoting i-CABLE’s services to the woman next to the posters.[20]  The Judge rejected the prosecution’s argument that carrying out such promotional sales activities next to the posters was sufficient to constitute the “displaying” of the posters under s.104A and therefore allowed the respondent’s appeal and quashed his conviction. The Judge gave the word “display” a more restrictive meaning and held that, by standing next to the posters and carrying out promotional sales activities by reference to them, the respondent had not displayed the posters in question.[21]

  40. The Appeal Committee granted leave to appeal to the prosecution in respect of the following question of law of great and general importance certified by the Judge, namely[22]:

  41. In the context of a prosecution for an offence of displaying a poster on Government land without written permission of the Authority (contrary to sections 104A(1)(b), 104A(2) and 150 of the Public Health and Municipal Services Ordinance, Cap. 132), what act or conduct by a defendant must the prosecution prove in order to satisfy the element of ‘displaying’?

    C. The issue in this appeal

  42. The issue that has been raised in this appeal is one of statutory construction of the word “displayed” in s.104A(1). As it did below, the prosecution contended for a wide meaning of the word in that provision. Mr Martin Hui SC[23] submitted, relying on s.19 of the Interpretation and General Clauses Ordinance,[24] that the word “display” should be construed to include not just “physical display” but also what was referred to as “perceptive display”. The prosecution’s submission as to these two forms of display was set out in the appellant’s written case. It was submitted that:

    1. Physical display occurs when a defendant has “unfurled, unfolded to view, exposed to view, or made visible or manifest the poster or done any act(s) or conduct(s) concerned directly with the physical setup of the poster”; and

    2. Perceptive display occurs when a defendant has “show[n] or exhibited; or described in words or explained the contents of, the poster which has already been on display without permission; or any other act(s) or conduct(s) concerned with the continuous display of the poster without permission”.[25]

  43. As a preliminary observation, it is to be noted that the respondent was unrepresented at trial and on appeal to the Court of First Instance. The question of law on which leave to appeal to this court was granted proceeded on the footing that the placing of the cardboard structure bearing the posters in the present case constituted a display of a bill or poster on Government land and no point was taken that it did not do so. No argument challenging those assumptions arises for consideration in this appeal.

    D. The proper construction of “displayed” in s.104A(1)

  44. To answer the issue of statutory construction before it, the court must construe the language used in the light of its context and purpose. This is the modern approach to statutory construction which has been repeatedly endorsed and applied by this court.[26]

  45. As a matter of language, the word “display” can embrace a narrow meaning limited to the act of exposing the subject of the display to view (“unfurl, unfold to view; expose to view, make visible; show, exhibit”)[27] or a wider meaning including also the act of expounding or explaining the subject of the display (“describe in words, unfold in narrative; expound, explain”).[28]  Hence, resort to the context and purpose of s.104A(1) is critical to its proper construction.

    D.1 The statutory purpose of s.104A

  46. The Long Title of the Ordinance states that it is “[t]o make provision for public health and municipal services”. Part IX of the Ordinance is headed “Advertisements, Decorations and Signs”. It consists of seven sections, viz. ss.104, 104A, 104B, 104C, 104D, 104E and 105. The scheme of Part IX is: to provide power for the Secretary for Food and Health[29] to make regulations for the control of advertisements (s.104); to prohibit the display of bills or posters without permission (s.104A); to impose a duty to maintain a bill or poster displayed in a clean and tidy condition (s.104B); to empower the Secretary to remove a bill or poster displayed in contravention of ss.104A or 104B and to recover the cost of doing so from the person displaying the bill or poster (s.104C); to deem certain additional persons to display bills or posters (s.104D); to provide relevant definitions (s.104E); and to empower the Director of Buildings[30] to serve notices on owners of a hoarding, scaffolding or structure to remove or repair the same if dangerous or a fire hazard (s.105).

  47. There are at least two different purposes disclosed within the provisions in Part IX. In s.105, the focus is on safety. In ss.104 to 104E, however, the focus is on the aesthetics and amenities of places and buildings in Hong Kong, covering both the cityscape and rural landscape, and the avoidance of what can be described as environmental nuisance. Thus, s.104(1) provides:

  48. (1)

    Without prejudice to any other enactment relating to advertisements, decorations or signs, the Authority may make regulations restricting, regulating or prohibiting the exhibition of advertisements, decorations or signs of any kind whatsoever, and, in particular, may make regulations restricting, regulating or prohibiting the exhibition thereof in such places or in such manner or by such means as, in the opinion of the Authority, may affect injuriously or disfigure –

    (a)

    the amenities of any place or locality;

    (b)

    the natural beauty of a landscape;

    (c)

    the view from any highway, railway, tramway, ferry or from any public place or water;

    (d)

    the amenities of any village;

    (e)

    the amenities of any historic or public building or monument or of any place frequented by the public solely or chiefly on account of its beauty or historic interest.

  49. This purpose is also clear from the speech of the Secretary for the Environment, when moving the Public Health and Urban Services (Amendment) Bill 1980,[31] which introduced ss.104A to 104E into Part IX of the Ordinance. Amongst other things, he said:

  50. The existing controls over environmental nuisance caused by the indiscriminate posting of bills and posters are both limited in scope and ineffective. Although permission from the owner or occupier of land is necessary before a bill or poster can be displayed on that land, there is no provision in the law which requires the bill or poster to be maintained in a clean and tidy condition. Besides, enforcement is difficult since the offenders must be caught in the act of putting up the bill or poster before they can be prosecuted. This also means that the liability for the offence falls only on the bill-poster and not on other persons who could be regarded as being equally responsible, such as the employer of the bill-poster or persons whose goods or services are being advertised.

    ....

    In order to consolidate and strengthen the control over the posting of bills therefore, it is intended in this Bill, in another sense (laughter), to make it an offence for any person to display any bill or poster on Crown or private land without the written permission of the Authority or of the owner or occupier of the land. It also provides that any bill or poster being displayed must be maintained in a clean and tidy condition. Failure to do so constitutes an offence and the Authority is empowered to remove any such posters and to recover the cost of removal from the offenders ....

  51. As the above extract also makes clear, the amendments were to address the difficulty of enforcement by extending the reach of the offence beyond those persons “caught in the act of putting up the bill or poster” by also catching “other persons who could be regarded as being equally responsible, such as the employer of the bill-poster or persons whose goods or services are being advertised”. Nevertheless, the focus remained on the control “over the posting of bills”, i.e. the physical act of putting them up.

    D.2  The context of s.104A

  52. The Secretary for the Environment’s references to the limitations of the existing controls and the need to catch the offender in the act of putting up the bill or poster was a reference to s.8(b) of the Summary Offences Ordinance[32] which provided that:

  53. Any person who –

    ....

    (b)

    without the consent of the owner or occupier affixes any poster or other paper against or upon any building, wall, fence or paling; or writes upon, soils, defaces or marks any building, wall, fence or paling with chalk or paint or in any other way whatsoever; or wilfully breaks, destroys or damages any part of any building, wall, fence or paling, or any fixture or appendage thereof;

    ....

    shall be liable to a fine of $500 or to imprisonment for 3 months.

    [underlining added]

  54. The above-underlined portion of s.8(b) of the SOO was clearly limited in that it required proof that the person had himself affixed a poster to a building (etc.). Hence, unless he was caught in the act of putting the poster up, it would be virtually impossible (absent an admission) to convict a person under s.8(b). Another limitation was that unless the poster was “affixed”, i.e. actually attached or adhered to the building (etc.), the offence would not be committed.

  55. It was clearly to address these concerns that the 1980 amendments to the Ordinance were introduced. First, s.104A substituted the above-underlined part of s.8(b) of the SOO (which was deleted[33]) with a provision that targeted the displaying or affixing of a bill or poster on land. Doing so extended the reach of the offence to those bills or posters that were put up (“displayed”) but were not actually attached or adhered (“affixed”) on private or Government land. Secondly, s.104D(1) extended the reach of the offence by deeming certain other persons to have displayed the bill or poster by providing:

  56. (1)

    Where a person commits an offence against section 104A(1) the following persons shall be guilty of that offence in the same manner and to the same extent as if they had personally committed it –

    (a)

    any other person who uses the first-mentioned person to display or affix the bill or poster; and

    (b)

    any person whose goods, trade, business or other concerns are given publicity by the bill or poster:

       Provided that a person referred to in paragraphs (a) and (b) shall not be guilty of an offence under section 104A(1) by reason only that he uses the person to display or affix the bill or poster or that his goods, trade, business or other concerns are given publicity by the bill or poster, if he proves that it was displayed or affixed without his knowledge or consent.

  57. By reason of these amendments, greater control over environmental nuisance than that provided by s.8(b) of the SOO was achieved since the combined effect of ss.104A and 104D(1) of the Ordinance was to provide a comprehensive scheme to catch:

  58. (1)

    the person physically putting up the bill or poster (whether it be attached or adhered (“affixed”) or put up or posted (“displayed”));

    (2)

    any other person employing or instructing that person in (1) to put up the bill or poster; and

    (3)

    the person whose goods, trade, business or other concerns are given publicity by the bill or poster.

  59. It is to be noted that, whilst the deeming provision in s.104D(1) requires “a person” (referred to as “the first-mentioned person”) to have committed an offence against s.104A, it is not necessary, in order for liability under s.104D(1) to be established, for the first-mentioned person to be identified or charged with the offence under s.104A. It is sufficient if the facts disclose that the offence has been committed by someone, for example that a bill or poster has been affixed on Government land without relevant written permission. Thus, in the present case, although the person who actually physically set up the posters in question is unknown, this would not prevent s.104D(1) deeming either (i) any other person who used him for that purpose, or (ii) i-CABLE, whose business was thereby given publicity, from being charged with the offence.

  60. The legislative strategy that was adopted to address the perceived mischief of environmental nuisance and enforcement difficulties arising under s.8(b) of the SOO was to deem others to have committed the offence under s.104A even where those others were not physically involved in the displaying or affixing of the bill or poster. Given this legislative strategy, there is no good reason to adopt a wider meaning of “displayed” in s.104A to embrace perceptive display as well as physical display: even where the person who physically set up the poster is unknown, the deeming provision in s.104D will enable enforcement action to be taken against one or more other persons. 

  61. Reference may also be made to the definition of “bill or poster” in s.104E(4) of the Ordinance which provides:

  62. In this Part, ‘bill or poster’ (招貼或海報) includes any word, letter, model, sign, placard, board, notice, device or representation and also includes any advertisement painted on any wall, fence, railing, post, rock, road-cutting or tree but does not include any structure, apparatus or hoarding used for the display of a bill or poster.

    The word “display” in s.104E(4) is clearly there used in the sense of physical display and does not suggest any support for its use as indicating perceptive display.

    D.3  Conclusion as to the proper construction of s.104A(1)

  63. In view of the above context and purpose of s.104A of the Ordinance, the word “displayed” in s.104A(1) should not be given the wider construction urged by the prosecution. On the contrary, the Judge’s narrower construction is to be preferred, so that to come within s.104A(1), the act of displaying, albeit not requiring attachment or adherence of the bill or poster to the land, has to concern the physical set up or putting up of the bill or poster.

    E. Miscellaneous arguments raised by the prosecution

  64. In the written Case for the Appellant and in the course of Mr Hui’s oral submissions, the prosecution advanced various arguments to support its wider construction. With respect, none of those arguments suggest that the conclusion reached above is incorrect or that “displayed” should be construed in s.104A(1) of the Ordinance to include perceptive display.

  65. I do not accept the submission that the Secretary for the Environment’s speech (above) supports a wider meaning of “display”. [34] Whilst the concept of “displaying” was included to widen the ambit of the offence, to broaden the offence beyond “affixing”, it was not used in contradistinction to physical set up. The point made by the Secretary for the Environment as to the need to make liable others who could be regarded as equally responsible was addressed by the addition of s.104D(1).

  66. The prosecution relied on the cases of Mcgahan v Windsor & Maidenhead Borough Council[35] and R v Newcastle-upon-Tyne Gaming Licensing Committee, ex parte White Hart Enterprises Ltd[36] to support its submission that perceptive display is included within s.104A.[37]  However, those cases are to be read in their proper contexts. They were concerned with the meaning of “display” in the context of planning permission and licensing for gaming purposes respectively and do not provide a meaning of “display” in all contexts. They do not assist the construction of s.104A(1).

  67. The prosecution relied on the fact that a daily fine is imposed for contravention of s.104A(1) to support the submission that the offence is a continuing one and therefore one which can be committed by perceptive display.[38] The s.104A offence may properly be seen as continuing, hence the daily fine. However, it does not follow from this that “displayed” should be construed as including perceptive display. The facts relating to the commission of the offence in a particular case (and which may last only a few hours) may not involve the continuity of all the elements of the offence so as to make it a continuing offence and this is reflected in the one-off penalty stipulated in the second column of the Ninth Schedule of the Ordinance (i.e. a fine at level 3).

  68. It was submitted that the decision of Jeremy Poon J (as he then was) in Chee Fei Ming v Director of Food and Environmental Hygiene[39] showed that the purpose of s.104A was to criminalise and eradicate the unauthorised use of Government land for the continuous display of posters without permission.[40]  However, the conclusion that s.104A is concerned with the physical display of a bill or poster and not perceptive display is not inconsistent with that statutory purpose. This judgment does not address any of the issues raised in either the first instance or Court of Appeal judgments inthat case and no issue of constitutionality of s.104A has been raised in this appeal.

  69. The prosecution submitted that if “displaying” in s.104A was limited to physical display, this would overlap with the offence of “affixing” a bill or poster and would therefore be redundant.[41] However, that does not, with respect, follow. As explained above, “display” is different to “affix” because it does not require attachment or adherence. There is no redundancy in construing “display” in s.104A as limited to physical display rather than perceptive display.

  70. It was submitted that a narrow construction of “displayed” would lead to anomalous results in that a salesperson like the respondent could escape liability for a bill or poster whilst the person who physically set it up and whose goods were being advertised would not.[42] In his oral submissions, Mr Hui submitted that this would be “a problem” in that it would dent the effectiveness of the offence. However, it is questionable whether this is an anomaly or problem as submitted. In the present case, for example, it is not clear why i-CABLE was not prosecuted under s.104D(1)(b). Had this occurred, responsibility for the posters in question would, subject to the proviso in s.104D(1), have been placed on the entity which would appear to have most benefitted from their unauthorised posting. It may be that it would be of greater prosecutorial convenience to be able to issue a fixed penalty ticket on the spot to the person conducting the perceptive display, but this does not compel the construction contended for by the prosecution. In any event, regardless of the offence provisions, the Government retains the ability to remove an unauthorised bill or poster under s.104C.

  71. The prosecution also sought to rely on the provisions of ss.1(1) and 6 of the Advertisements Regulation (Cap.132B) to support its construction of “displayed” in s.104A.[43] However, s.1(1) of the Regulation which makes it an offence to “affix or otherwise exhibit any hoarding, notice board or poster” without relevant consent simply demonstrates that “affixing” without more is a limited concept and that there is therefore a need to regulate an advertisement which is “otherwise” exhibited, i.e. not just by being affixed in place.

  72. Finally, it was submitted that since criminalising the unauthorised use of Government land was the clear objective of s.104A, the wider construction of “displayed” was to be preferred.[44] The statutory purpose of s.104A has been addressed above. Even if one of the objectives is the criminalisation of such use of Government land, this is not a strong reason for adopting the prosecution’s wide construction of “displayed”, which is otherwise inconsistent with the clear meaning of the word construed in accordance with its context and purpose. If it had been the wish to extend the offence to someone in the position of the respondent, suitable words would no doubt have been employed in s.104A or s.104D.

    F. Conclusion

  73. These are the reasons which led me to dismiss this appeal.

  74. On the question on which leave to appeal was granted, I would conclude that, in the context of a prosecution for the offence of displaying a poster on Government land without written permission of the Authority, some act or conduct concerned directly with the physical set up or putting up of the bill or poster is required in order to satisfy the element of “displaying”.  There being no evidence that the respondent had done any such act or conduct, his conviction by the Magistrate was properly overturned by the Judge.

    Justice Gleeson NPJ

  75. I agree with the reasons given by Mr Justice Fok PJ for dismissing this appeal.


[1] Para 36, CFI Judgment.

[2] Land is defined in s 104E.

[3] Such consideration would require detailed consideration and should await a proper case.

[4] The woman was overheard by a prosecution witness to be enquiring about broadband service installation plans for village houses. Para 5, CFI Judgment. The conversation was not denied although according to the defendant he was waiting to meet his supervisor at the footbridge and the woman thought he was on duty there.

[5] Para 3, CFI Judgment.

[6] Para 4, CFI Judgment.

[7] Para 13, CFI Judgment.

[8] Para 16, CFI Judgment.

[9] Secretary for the Environment when moving the bill.

[10] Section 6 of Public Health and Urban Services (Amendment) Ordinance, Ordinance No. 7/80.

[11] This may be a continuing offence.

[12] There are extensive definitions of “land”, “bill or poster” which are not necessary to be considered in this appeal.

[13] (Cap.132) (“the Ordinance”).

[14] See, s.150 and the Ninth Schedule of the Ordinance; s.150 provides: “Any person who is guilty of an offence under any of the provisions of this Ordinance specified in the first column of the Ninth Schedule shall be liable on summary conviction to the penalty specified in relation thereto in the second column of that Schedule, and, where the offence is a continuing offence, shall be liable, in addition, to the fine specified in relation thereto in the third column of that Schedule for each day during which it is proved to the satisfaction of the court that the offence has continued.”

[15] Namely, the Secretary for Food and Health, being the designated Authority within s.104A of the Ordinance: see s.2 “Authority”; s.3 “Designation of Authorities”; and Third Schedule “Designated Authorities”.

[16] TWR 16/2014, before Ms Lau Suk-han, Special Magistrate.

[17] CFI Judgment at [26]-[27].

[18] In HCMA 208/2015, before HH Judge Douglas Yau, Judgment dated 17 July 2015.

[19] CFI Judgment at [35].

[20] Ibid. at [34].

[21] Ibid. at [36].

[22] HCMA 208/2015, Judgment dated 1 September 2015; FAMC 40/2015, Determination dated 1 February 2016 (Ribeiro, Tang and Fok PJJ).

[23] Deputy DPP, appearing with Mr Raymond Cheng, Assistant DPP (Ag.), for the appellant.

[24] (Cap.1), providing: “An Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit.”

[25] Case for the Appellant at [42] and [59].

[26] See, e.g., Medical Council of Hong Kong v Chow Siu Shek (2000) 3 HKCFAR 144 at 154B-C; HKSAR v Cheung Kwun Yin (2009) 12 HKCFAR 568 at [11]-[14]; HKSAR v Fugro Geotechnical Services Ltd (2014) 17 HKCFAR 755 at [19].

[27] Shorter Oxford English Dictionary (6th Ed.) Vol.1 at p.711.

[28] Ibid.

[29] The Secretary for Food and Health (“the Secretary”) being the designated “Authority” (see ss.2, 3 and Schedule 3 of the Ordinance) for the purposes of s.104.

[30] The Director of Buildings being the designated “Authority” (see ss.2, 3 and Schedule 3 of the Ordinance) for the purposes of s.105.

[31] Hong Kong Legislative Council, Official Report of Proceedings, 30 January 1980 at pp.354-355.

[32] (Cap.228) (“the SOO”).

[33] Public Health and Urban Services (Amendment) Ordinance 1980 (Ord. No. 7/80), s.6.

[34] Case for the Appellant at [40].

[35] [2002] All ER (D) 190; [2002] EWHC 1551 (Admin).

[36] [1977] 1 WLR 1135.

[37] Case for the Appellant at [41].

[38] Ibid. at [46]-[47], [50]; Supplemental Case for the Appellant at [15].

[39] [2014] 5 HKLRD 771; that decision has been the subject of an appeal to the Court of Appeal in CACV 219/2014 (heard together with CACV 220/2014), in which judgment was handed down on 6 June 2016.

[40] Case for the Appellant at [48].

[41] Ibid. at [49].

[42] Ibid. at [54].

[43] Supplemental Case for the Appellant at [9]-[14].

[44] Case for the Appellant at [58].


Representations

Martin Hui SC, DDPP, and Raymond Cheng, ADPP (Ag) (Department of Justice) for the Appellant.

Jackson Poon (instructed by ONC Lawyers, assigned by the Director of Legal Aid) for the Respondent.


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