Victory for Islanders’ Homes: Hong Kong Court Rules Against Unlicensed Funeral Parlour

Mathias Cheung 25th March 2015

For over 20 years, residents of Cheung Chau Island in Hong Kong have performed funeral rites in a makeshift Funeral Pavilion. Located less than 10 metres from homes on a main street, the Pavilion hosts funeral rites late into the night, storing bodies for over 24 hours without air-conditioning. The noise, smell and other discharges have caused distress and nuisance for years.

Since the 1990s, proposals to replace the Pavilion with a proper funeral parlour have fallen through (Hansard, 24 November 1999, p.1544). Complaints of nuisance have been lodged with the Food and Environmental Hygiene Department (“FEHD”), but to no avail. The reason – because the Pavilion was deemed not to be a “funeral parlour” under the Funeral Parlour Regulation (Cap. 132AD) and need not be licensed. The Cheung Chau Rural Committee has thus operated what were dubbed “condolence ceremonies” under the law’s radar.

The psychological distress and nuisance caused over the years is a clear violation of the residents’ right to their homes under Article 14 of the Hong Kong Bill of Rights (equivalent to Article 17 of the ICCPR).

Finally, in March 2014, an islander applied for judicial review against the inaction of the FEHD. The contention is a straightforward one. Section 3 of the Regulation defines a funeral parlour as a “mortuary” i.e. a place set apart or habitually used for the reception, storage or treatment of human remains, except mortuaries in hospitals or public funeral halls. Section 4 requires funeral parlours to be licensed.

In the landmark decision of Kwok Cheuk Kin v Director of Food and Environmental Hygiene [2015] HKCFI 279, the Court of First Instance ruled that a place can be a funeral parlour even if not used to prepare bodies for encoffining burial or cremation. The FEHD was therefore directed to reconsider whether to take enforcement actions.

On the face of it, the issue is one of statutory construction. Indeed, the FEHD argued that because funeral parlours are defined as “mortuaries”, they must naturally be used for the encoffining or embalming of bodies.

The Court took a robust approach at [38]-[41] in rejecting these submissions. The learned judge Au J stressed: “it cannot be said… that no public health risk at all will be posed if a place is used just to receive or store an already embalmed human body (even in a hermetically covered coffin), especially when there are no regulations imposed on the ventilation requirements and time limit as to how long the body could be stored in that place.”

Although the case turned on a question of statutory interpretation, carried to overly pedantic proportions by the FEHD, one can safely say that the decision was reached with the underlying concern for the nuisance caused by the poor hygiene conditions of the Pavilion. This is a vindication of the residents’ right to their homes, albeit through a convoluted route.

On this view, the decision is a laudable one. Owing to the limited availability of land and the density of the population in Hong Kong, residents have long been victims of nuisance and disturbance from crematoria, columbaria and funeral parlours located far too close to residential homes. For a conservative Chinese community like Hong Kong, the distress of sleeping so close to the dead is a fundamental violation.

As Strasbourg stated in Moreno Gomez v Spain [2004] ECHR 633 at [53], breaches of the right to respect of the home “include those that are not concrete or physical, such as noise, emissions, smells or other forms of interference.” The Court thus held that “in view of the volume of the noise – at night and beyond the permitted levels – and the fact that it continued over a number of years, the Court finds that there has been a breach”.

Unfortunately, despite numerous complains and debates in the legislature, the government has been slow to take action. The issue of illegal columbaria (mass storage of human ashes in niches for worship) in urban districts remains unresolved, pending proposals for a licensing regime. The decision on Cheung Chau should be a wake up call for local authorities to take immediate action. Protection of the fundamental right to one’s home need not wait for a statutory licensing regime.

Author profile

Mathias Cheung is a recent BCL graduate from Magdalen College. He is currently studying the BPTC at City Law School, and is the student representative of the UK Association for European Law.

Citations

Mathias Cheung, ‘Victory for Islanders’ Homes: Hong Kong Court Rules Against Unlicensed Funeral Parlour’ (OxHRH Blog, 25 March 2015) <http://humanrights.dev3.oneltd.eu/victory-for-islanders-homes-hong-kong-court-rules-against-unlicensed-funeral-parlour/> [Date of Access].

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