Coram: The Honourable Mr. Justice Jones in Court.
Date of hearing: 27 April 1984
Date of delivery of judgment: 27 April 1984
1. On the 24th February 1984 the first appellant was convicted by a magistrate at the Causeway Bay Magistrates Court that being theholder of a liquor licence he permitted persons under the age of 18 years to drink intoxicating liquor on licensed premises contraryto Regulation 28 of the Dutiable Commodities (Liquor) Regulations and Section 46(A) of the Dutiable Commodities Ordinance Cap. 109. The second appellant who Was the first appellant’s servant was convicted of aiding and abetting. Both appellants were fined$500.
2. The appellants appeal against their conviction. Regulation 28 reads:-
Section 46A(1) of the Ordinance provides:-
3. The facts reveal that a licence check was carried out by police officers at the Hollywood Grill and Lounge, 298 Hennessy Road, Wanchaion the 18th November 1983. Two persons under the age of 18 were found drinking beer at the premises. It was agreed that the firstappellant was not present at the premises at the time of the alleged offence whilst the second appellant who was present was themanager of the restaurant. Neither appellant gave evidence at the hearing.
4. In reaching his verdict the learned magistrate decided that the offence is one of absolute liability: He said that there is no statutorydefence and referred to the absence of the word “knowingly” in the legislation to support his opinion. However, because the word”knowingly” is not included it does not necessarily follow that the offence is one of absolute liability. In Sweet v. Parsley (1970) A.C. 132 Lord Reid at page 149 said:-
5. Further the learned magistrate appears to have overlooked the provisions of Section 46A(2)(b) of the Ordinance which reads:-
6. It appears that. the solicitor for the appellants at the hearing did not direct his mind to the possible defence afforded by thesection despite the general tenor of the evidence indicating that such a defence was available. The burden. of proving this defencewill of course be upon the accused on a balance of probabilities.
7. As a result of the convictions will be quashed and the sentences set aside. The fines if paid will be remitted. There will be anorder for a rehearing before a different magistrate.
Miss Betty Kwan (P.H. Sin & Co.) for Appellants.
Mr. A.A. Bruce (Legal Department) for Respondent.