HKSAR v Asaduzza

The appellant, Asaduzzaman, was charged with contravening s.30AA of the Food Business Regulation, Cap. 132, which prohibits a permittee of a fresh provision shop license from allowing live poultry on the premises between 8:00PM of each day to 5:00AM the next day. On the evening of 4 September 2008, Asaduzzaman took four live chickens from a poultry cage and kept them in his shop overnight. He appealed his conviction to the Hong Kong Special Administrative Region Court of Appeal on the following grounds:

1)      Section 30AA should not apply to Asaduzzaman’s license because it did not come into effect till 2 July 2008, a year after he was granted a fresh provision shop license.

2)      Section 30AA applies prospectively and not retrospectively; therefore, it cannot apply to permits granted before 2 July 2008.

3)      Under s.125(1B)(a)(ii) of the Public Health and Municipal Services Ordinance, the renewal of a permit shall not be subject to additional or alternative conditions unless prior notice is given to the permittee.

4)      Section 30AA is contrary to Article 105 of the Basic Law, which protects the right of individuals to use property in accordance with the law. Any restriction imposed by law on Asaduzzaman’s right to hold property must satisfy a proportionality test. Asaduzzaman concedes the restriction pursues a legitimate aim, combating the danger of avian flu, and that the measure is rationally connected to the legitimate aim. However, he argues that the law is not equitable because it does not apply to wholesalers or farmers of live poultry.

The Court dismissed Asaduzzaman’s claim.The Court held that the first argument was untenable because s.30AA governs any person who is a permittee, both before and after the date the section came into effect. Asaduzzaman cannot claim ignorance of the law, and what he anticipated when he applied for and obtained the license was irrelevant.

In addressing the second argument, the Court agreed that s.30AA applies prospectively; however, it must be taken to apply to the date the contravention occurred, rather than the date the license was issued. Thus, it applied on 4 September 2008 when Asaduzzaman kept his live chickens in his shop.

The Court dismissed Asaduzzaman’s ultra vires argument. It held that s.30AA was not inconsistent with the Public Health and Municipal Services Ordinance because the case had nothing to do with the renewal of permits. The purpose of the Ordinance as a whole is the protection of health, which is consistent with s.30AA. The Court found the requirements of s.125 in the Ordinance did not prevent s.30AA in the Regulation from having immediate effect on those who were permittees at the date the provision came into effect.

The Court stressed the importance of combatting avian flu in addressing Asaduzzaman’s fourth argument. The restriction on the right to hold property, such as live poultry, is in the interest of public health. Farmers and wholesalers are subject to different regulatory measures because it is inevitable that measures to combat avian flu, or any threat to public health, will vary with the group of individuals and their occupation. Section 30AA does not “go further than is necessary to achieve the objective” and fail the proportionality test. Furthermore, extensive measures are in place to regulate risk of avian influenza outbreaks in local farms.

“The Public Health and Municipal Services Ordinance, Cap. 132 is, as its name suggests, a statutory vehicle for the protection of public health. It designates the Director of Food and Environmental Hygiene to be the Authority in respect of a variety of powers and duties specified by the Ordinance…Section 56(i) empowers him to make regulations “for securing the observance of sanitary and cleanly conditions and practices and wholesome methods in connection with – (a) the sale of food for human consumption …; (b) the … exposure of sale … of food intended for sale … for human consumption … or otherwise for the protection of the public health in connection with any such matters” (Para 3).

 “Since 1998, the Government has put in place a comprehensive preventive and surveillance programme to reduce the risk of avian influenza outbreaks in Hong Kong. These measures included tightened biosecurity measures at local farms, enhanced import control and hygiene requirements for wholesale and retail markets, etc. In 2003, we introduced a vaccination programme for all local chicken farms and we also required all imported live chickens to be vaccinated against the disease. The World Health Organisation has publicly commented that our preventive and surveillance programme is one of the most advanced systems that they have seen” (Para 26).