Tri-view Ltd And Another v Hksar

CourtCourt of Final Appeal (Hong Kong)
Judgment Date27 Oct 2006
Citation[2006] 4 HKLRD 376; (2006) 9 HKCFAR 695
Judgement NumberFACC2/2006
SubjectFinal Appeal (Criminal)
FACC000002/2006 TRI-VIEW LTD AND ANOTHER v. HKSAR

FACC No. 2 of 2006

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 2 OF 2006 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 511 OF 2005)

_________________

Between

TRI-VIEW LIMITED

1st Appellant

PARKVIEW (SUITES) LIMITED
2nd Appellant

and

HONG KONG SPECIAL ADMINISTRATIVE REGION

Respondent

____________________

Court: Chief Justice Li, Mr Justice Chan PJ, Mr Justice Ribeiro PJ, Mr Justice Litton NPJ and Lord Scott of Foscote NPJ

Date of Hearing: 11 October 2006

Date of Judgment: 27 October 2006

________________________

J U D G M E N T

________________________

Chief Justice Li:

1. I agree with the judgment of Mr Justice Chan PJ.

Mr Justice Chan PJ:

Introduction

2. This appeal involves the construction of the definition of “hotel” in s.2 of the Hotel and Guesthouse Accommodation Ordinance, Cap 349 (“the Ordinance” or “HGAO”). “Hotel” (together with “guesthouse”) is defined to mean any premises whose occupier, proprietor or tenant holds out that, to the extent of his available accommodation, he will provide sleeping accommodation for any person presenting himself who appears able and willing to pay a reasonable sum for the services and facilities provided and is in a fit state to be received.

3. The appellants contend that this must be construed consistently with the common law concepts of inn and innkeeper such that the requisite holding out must be of an obligation to provide accommodation if the pre-conditions as set out in that definition are satisfied. On the other hand, the respondent argues that this statutory definition does not require the holding out of such an obligation.

The facts

4. The appellants are the owner and operator of the Hong Kong Parkview Club and Suites (“Parkview”) at Tai Tam Reservoir Road. Parkview provides serviced apartment type of accommodation which is let on a short or long term basis but day-to-day letting is also accepted.

5. In May 2004, an undercover inspector of the Office of the Licensing Authority (of the Home Affairs Department) made a reservation for a room in Parkview for one night through its website and paid for it by credit card. When the inspector turned up at Parkview on the designated date, he was received by a manager and completed certain registration procedures. Apart from a key to the room and other access cards to the club facilities, he was given a registration form together with a licence agreement which contained certain terms and conditions. When he checked out on the following day, he was informed that in future, he could also make a reservation by telephone or by contacting the manager directly. At the end of September 2004, the inspector again reserved a room at Parkview for two nights, this time by making a telephone call to the manager. On 7 October, the inspector made yet another booking for one night through the internet. Subsequently, based on these bookings, two undercover inspectors checked in at Parkview on the designated dates, were similarly received and went through similar procedures.

6. At the reception desk of Parkview, there was a notice which expressly reserved the right to refuse accommodation to any person. The terms and conditions of the licence agreement given to the guests contained a provision reserving a discretion to Parkview to terminate the licence at will without giving reasons.

7. Parkview is not licensed under s.8 or exempted from obtaining such a licence under s.6 of the Ordinance. The appellants were charged with and later convicted in the Magistrates’ Court (Mr Candy) of altogether four charges for operating or otherwise having control of an hotel without a certificate of exemption or licence, contrary to s.5 of the Ordinance. An appeal to Bokhary J was dismissed. With the leave of the Appeal Committee, the appellants now appeal to this Court on the ground that there is a question of law of great and general importance in relation to the construction of the definition of “hotel” under s.2 of the Ordinance.

The appellants’ case

8. The appellants’ case is that Parkview is not an hotel within that definition and hence does not require any exemption or licence. The reason, Mr Jeremy Barlett for the...

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