1938-12-15 — Page 9

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Hongkong Daily Press.

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Port Ofles in the United Kingdom.. 報西 ESTABLISHED 1857 刺孖 15-19 Marina House, Queen's Road Central,

**A*** HONGKONG, THURSDAY, DECEMBER 15, 1938. #+######UKTIX

APPEAL UPHELD IN SUPREME COURT

The following is the text of a judgment delivered by His Lord- ship Mr. Justice R. E. Lindsell, Acting Chief Justice, in the Supreme Court on Tuesday:---

MEANING OBVIOUS

Mr. Macnamara, however, satis mean that the nuisance still fed me that the imposition of a existed at the time when the sum- fine, such as a Magistrate is em-mons was applied for, an order is "This is an appeal, under Section! (8)-Any spring, seepage, stream, powered to order by Section 28 (2) to be made. 118A of the Magistrate Ordinance, drain, water course or collection of the Ordinance, carries with it 1932, from a decision of a Magis of water able to form a breeding viction of the offence in respect by necessary implication a con- #trate whereby he convicted the place for mosquitoes;

In any case it is obvious that appellant of an offence against the|

of which the fine is imposed. The they cannot be read to mean that Section 21-On the receipt of question Public Health (Sanitation) Ordin-any information respecting the therefore is whether in this case order it satisfied that the nuisance I have to determine the Magistrate shall make an ance, 1935, and made an order existence of # nuisance, requiring him

the the appellant was rightly convict existed when the time limited by to prevent the

Council shall, if satisfied of its ed. recurrence of a nuisance on t

the abatement existence; serve a notice on the

notice expired. premises, 24 Somerset Road, and author of the nuisance, or if such which the conviction was recorded about Section 25 (1) that it ap

It is clear that the offence for There is, however, this dimculty person cannot be found, on the was that of failing to comply, pears to contemplate three cases in owner or occupier of the premises within the time limited, with the in which a Magistrate shall make

Jon which the nuisance arises, re- terms of the Urban Council's notice an order:

to pay a fine of $15.

The facts, which dispute, are as follows:-

are not

"On 29th April, 1938, the appel-quiring him to abate the same of the 6th May, and it is common

Iant's premises were visited by the within a reasonable time to be ground that the appellant did not

违 Chinese Sanitary specified in the notice, and to Inspector, who found the roof gut-execute such works and do such ninth day after the service of the comply with those terms until the

respondent,

notice.

(1) If the requirement of the

Council is legal;

(2) If he is satisfied that the alleged nuisance exists;"

(3) if he is satisfied that the haisance, though abated, Is likely to recur on the same premises.

I am entirely at a loss to con-

ters to hold an accumulation of things as may be necessary for stagnant water such an accumula-that purpose.

It is submitted, however, by Mr. tion being nuisance under Section 24-If such person has Machamars that the only offences Section 17 (8) of the Public Health [not obtained from the Council a created by Section 24 are those (a). (Sanitation) Ordinance, 1935, modification or withdrawal of the of allowing the continuance of a On 6th May, 1938, a Statutory notice, and continues to make de nuisance after the time limited by notice under Section 21 of the fault in complying with the re- the abatement notice right up to ceive what circumstances (if any) Ordinance was issued by the Urban quirements thereof, or, in the cast the time when a summons is ap- the legislature had in mind in pro- Council, requiring, within seven of a nuisance, if the same, al- plied for: and (b) of havingviding for the making of an order days from the time of service though abated since the service of created or allowed the existence of merely on the ground that the re- thereof, the abatement of the the notice, is in the opinion of the a nuisance which though abated quirement of the Council was nuisance and prevention of its re-Council Ukely to recur on the since the expiration of the time legal." currence, and was served on the same premises, the Council shall limited by the notice is shown to appellant on the 13th May. The cause a complaint relating to the be" likely to recur." seven days thus expired at mid- non-compliance with the sald night on the 20th May.

notice," or to such nuisance, to bel made before a magistrate, who

SUBMISSION AGREED

MAGISTRATE'S ORDER

Clearly, under Section 25 (1) (a), (b) and (c), the Magistrate's

On the 21st May the respondent shall thereupon issue a summons, and reasonable interpretation of forms and three forms only.

He argues that this is the natural order must be in one of three paid a second visit to the appel-requiring the person on whom the the Section and that to attempt to lant's premises and found the

(1) Where the same nuisance still existing but it notice was served to appear before read into it by implication a pro- was abated by May 23rd.

vision that failure to comply with

him

On the 30th May, the respon- Section 25 (1)-If the magistrate an abatement notice within the dent made complaint to the is satisfied that the requirement time limited thereby is "per se", an Magistrate under Section 24 of the of the Council is legal, or that, the offence is to place an unnatural Ordinance in respect of non-com- alleged nuisance exists, or that, construction upon a penal pro- pliance with the requirements of although the said nuisance is vision which, according to the

rule

"J

nuisance still exists. (or existed at the time of the summons was applied for) he can order its abate- ment.

(2) Where the nuisance has al- ready been abated but is likely to recur he can order the prevention of its recur→

rence,

יי

(3) Where the nuisance still exists and is also likely to recur he can order both its abatement and the preven- tion of its recurrence,

the notice, and on the 23rd June abated. it is likely to recur on the cardinal

of interpretation. the Magistrate issued his sum-ald premises, he shall make an should be read, so far as may be, mong which stated that complaint order on such person-(a) requir-in favour of the accused With had been made that the defendant ing him to comply with all or any this submission I am in agreement. ((now the appellant) unlawfully of the "requirements of the notice, did fall to comply with a notice or otherwise to abate the nuisance, the Section "or, in the case of a I think that the very words of of the Urban Council served on within a time specined in the or- nuisance, him on the 13th May, which ex-der, and to do any works necessary abated since the service of the

the same though| pired on the 20th May, 1938, for that purpose; or (b) prohibit notice is in the opinion of the (2), by any such order impose a He can further, under Section 25 requiring him to remove

the ing the recurrence of the nuisance. Council likely to recur" make it ane not exceeding $50 on the per- accumulation of stagnant water in and directing the execution of the obvious that the time limited by son against whom the order is the roof gutters of his premises works necessary to prevent the re-the notice for compliance, with its directed; and to prevent the formation of currence; or (c) both requiring requirements is not crucial.

from which it follows the same in future-in contraven-abatement and prohibiting the re-

that, unless he can make an order tion of Bection 17 (8) of the Puhliccurrence of the nuisance.

The legislature having obviously in form (1), (2) or (3) above, he Health (Sanitation) Ordinance,

intended that the defence that he cannot impose such (2) The Magistrate may, by his has since service of the notice

nne. 1935.

order, impose a fine not exceeding abated the nuisance complained satisfaction that the requirement It would seem therefore that The summons was returnable on nfty dollars on the person July 15th and heard and whom the order is made, and shall on whose premises the nuisance is abatement notice was intra vires. on of shall not be open to a defendant of the Council is legal, i.e. that the determined by the Magistrate on also give directions as to the pay-likely to recur, le, a previous and cannot "per se" be any ground on July 22nd and August 11th, and ment of all costs incurred up to maybe persistent offender, the im-which to base an order. on the latter date the Magistrate the time of the hearing or making plication that this defence shall be held that since the notice had not of the order.

WILS

been complied with in point of time the defendant must be con- victed. He also made an order

* PRELIMINARY POINT

..

exists

available to what I may call words "if the requirement of the I cannot help thinking that the first offender seems to be inevit-Council is legal," the equivalent of able.

which did not appear in the Eng- under Section 25 (1) (b) of the At the hearing of this appeal I

This view is confirmed by the fish Public Health Act from which Ordinance that the defendant myself raised the preliminary

words of Bection 25 (1) "If the this provision of our Sanitation should prevent the recurrence of point, which was not raised in the Magistrate is satisfied that the Ordinance was ultimately derived, the nuisance at the premises in notice of appeal, whether under alleged nuisance

or that, were inserted "ex abundante can- future, and under Section 25 (2) the provisions of, Section 24 and although the said nuisance is tela" and were intended to qualify 25, which seem to limit the magts. abated. It is likely to recur on the the whole of sub-section (1) of From this order insofar as It terial jurisdiction to the making said premises he shall make an Section 25, and hence that the carries with it a conviction the of an order in' one or more of cer-

order etc.

word "or" in the second line can- defendant has appealed.

tain forms, it was within his power On the face of it these words not be read disjunctively. If The material provisions of the to record a conviction, since, if he would appear to mean in. part "and" be substituted for "or" the Public Health (Sanitation) Ordin- had no, such power, and if the that the Magistrate must be subsection makes sense; otherwise ance, 1935, are as follows:-- words of his finding the defen-satisfied, before he makes an or-It does not.

imposed a fine of $15.

ן

Bection 17-The following shall dant must be convicted" were not der in respect of a nuisance that For these reasons I hold that be deemed to be nuisances Hablo mere surplusage, it was obvious te not likely to recur, that the this appeal succeeds, that the con- to be dealt with summarily in the that the conviction recorded nuisance still exists; but Mr. Mac-viction must be set aside and the mariner provided by this Ordin- against the appellant could not namara is, as I understand him, fine of $15 refunded to the sp-

stand..

prepared to concede that they pellant.

ance:-

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