HKSAR v. HO YAU YIN

   HCMA180/2009

   IN THE HIGH COURT OF THE

   HONG KONG SPECIAL ADMINISTRATIVE REGION

   COURT OF FIRST INSTANCE

   (Appellate Jurisdiction)

   MAGISTRACY APPEAL NO. 180 OF 2009

   (ON APPEAL FROM TWS 6547 OF 2008)

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BETWEEN

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J U D G M E N T

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1.  This application arises from an appeal against the decision of a magistrate. I have allowed the appeal by the appellant who was summonsed for the offence of carrying a lighted cigarette in the “indoor” area in a restaurant which was alleged to be designated as a non‑smoking area under section 3(1) of the Smoking (Public Health) Ordinance, Cap. 371 (“the Ordinance”).

2.  By a Notice of Motion filed on 15 October 2009, the respondent invites this court to certify 2 questions for the Court of Final Appeal, pursuant to section 32 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.

3.  These 2 questions are :

(1)  Whether an area of the premises enclosed by plastic curtain is an enclosed area for the purpose of the definition of “indoor” in section 2 of the Ordinance.

(2)  Whether the premises have to be enclosed at least up to 50% of the total area on each and every side in order to constitute “indoor” in section 2 of the Ordinance.

A Chinese version of the questions are included in the Notice.

4.  The original trial and the appeal were conducted in Chinese, but at the request of Mr Cheung, and in order to avoid the inconvenience of translation, I have agreed to prepare this decision in English. Mr Cheung informed me that the Chinese version of the questions could be ignored.

5.  In support of his application, Mr Cheung submitted that the legislative intent was that premises with enclosure on 3 sides shall be covered in the definition of “indoor” in the Ordinance, and the different interpretation adopted in my judgment will affect the prosecution of many similar cases. Mr Cheung argued that the issue would satisfy the requirement of great and general importance.

6.  While I tend to agree, in the circumstances, that the second question meets the criteria, I have reservation about the first. I believe my judgment never said that the material used for the enclosure was a relevant matter; my query was whether the different plastic curtains in this case had clearly and sufficiently constituted any enclosure, as alleged in the oral evidence of the prosecution witness and his sketch.

7.  Mr Cheung stated that they would not be pursuing the issue of sufficiency of the evidence in this particular case, they were not seeking to overturn the result of the appeal, however, he believed this may well be an opportunity to clarify also the relevance of the material used.

8.  While I appreciate Mr Cheung’s interest to have this matter clarified by the Court of Final Appeal, however, I do not think it appropriate for me to certify a question that does not directly raise from my judgment.

9.  Hence, I would certify the second question raised for consideration by the Court of Final Appeal, but not the first one.

Appeal by the appellant to Court of Final Appeal allowed. Please refer to FAMC68/2009 dated 3 December 2009