ATTORNEY GENERAL v. DEMAND ENTERPRISES LTD

BETWEEN

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JUDGMENT

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1. This is a Case Stated, by a magistrate sitting at Tsuen Wan, at the instance of the Attorney General.

2. An information was preferred by a Labour inspector on 16th March, 1986, against the respondent, Demand Enterprises Limited, which was charged as follows -

 

"Demand Enterprises Limited on the 2nd day of August, 1985 at 84-92 Chai Wan Kwok Street, 13th floor, Flat Q, Tsuen Wan, New Territories in Hong Kong, being the proprietor of an industrial undertaking, employed one child YUEH Ching-ching, alias NG Wai-yeung, aged 13 in such industrial undertaking."

3. The respondent pleaded not guilty. After evidence had been given by the appellant's witnesses, the respondent elected to give no evidence or to call no witnesses. The magistrate dismissed the information.

4. The magistrate has set out at paragraph 6 of his Stated Case, which incidentally I commend for the clarity with which it is expressed, the facts which he found -

5. The magistrate, after considering the evidence, came to the conclusion that what he described as "the actus reus of employment" had been proved but that "mens rea" had not; and that, since mens rea was an element in the offence, the information must be dismissed.

6. He poses the question of law arising for the opinion of this court in the following words -

 

"Was I correct in law on ruling that the offence created by Regulations 4(1)(b) and 9(1) of the Employment of Children Regulations, made under the Employment Ordinance, Chapter 57 is not an absolute offence and that mens rea is a necessary element of the offence?"

7. This question is one which has frequently faced the courts with a difficult question of interpretation in a number of cases ranging over different spheres of human activity.

8. I shall confine myself to references to a few of these cases and especially to the more recent ones which themselves contain an assessment of the earlier authorities on the subject.

9. In LIM Chin-aik v. The Queen⁽¹⁾, the Privy Council had to consider a section of the Immigration Ordinance of the State of Singapore. The appellant had returned to Singapore, although an order prohibiting him from entering Singapore had been made. It was established at the trial that there was no evidence from which it could be inferred that the appellant had any knowledge of the order of prohibition

10. In the headnote to that case, the general principle is set out in the following terms -

 

"Held, that there is a presumption that mens rea or a knowledge of the wrongfulness of the act is an essential ingredient of every offence, but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals and both must be considered."

11. At page 172, Lord Evershed, having considered several earlier authorities among them Cundy v. Le Cocq⁽²⁾ and Sherras v. De Rutzen⁽³⁾, both of which were cited to me today, commented-

 

"Their Lordships return accordingly to the main question. That proof of the existence of a guilty intent is an essential ingredient of a crime at common law is not at all in doubt. The problem is of the extent to which the same rule is applicable in the case of offences created and defined by statute or statutory instrument."

 

At page 174, he added -

 

"Where the subject-matter of the statute is the regulation for the public welfare of a particular activity - statutes regulating the sale of food and drink are to be found among the earliest examples - it can be and frequently has been inferred that the legislature intended that such activities should be carried out under considerations of strict liability. The presumption, is that the statute or statutory instrument can be effectively enforced only if those in charge of the relevant activities are made responsible for seeing that they are complied with. When such a presumption is to be inferred, it displaces the ordinary presumption of mens rea. Thus sellers of meat may be made responsible for seeing that the meat is fit for human consumption and it is no answer for them to say that they were not aware that it was polluted. If that were a satisfactory answer, then as Kennedy L. J. pointed out in Hobbs v. Winchester Corporation [1910] 2 K. B. 471, the distribution of bad meat (and its far-reaching consequences) would not be effectively prevented. So a publican may be made responsible for observing the condition of his customers: Cundy v. Le Cocq [L. R. 13 Q. B. D. 207].

 

        But it is not enough in their Lordships' opinion merely to label the statute as one dealing with a grave social evil and from that to infer that strict liability was intended. It is pertinent also to inquire whether putting the defendant under strict liability will assist in the enforcement of the regulations. That mens that there must be something he can do, directly or indirectly, by supervision or inspection, by improvement of his business methods or by exhorting those whom he may be expected to influence or control, which will promote the observance of the regulations. Unless this is so, there is no reason in penalising him, and it cannot be inferred that the legislature imposed strict liability merely in order to find a luckless victim."

12. In the House of Lords case of Sweet v. Parsley⁽⁴⁾, Lord Diplock observed, at p. 163D -

 

"Where penal provisions are of general application to the conduct of ordinary citizens in the course of their every day life, the presumption is that the standard of care required of them in informing themselves of facts which would make their conduct unlawful, is that of the familiar common law duty of care. But where the subject-matter of a statute is the regulation of a particular activity involving potential danger to public health, safety or morals in which citizens have a choice as to whether they participate or not, the court may feel driven to infer an intention of Parliament to impose by penal sanctions a higher duty of care on those who choose to participate and to place upon them an obligation to take whatever measures may be necessary to prevent the prohibited act, without regard to those considerations of cost or business practicability which play a part in the determination of what would be required of them in order to fulfil the ordinary common law duty of care. But such an inference is not lightly to be drawn, nor is there any room for it unless there is something that the person on whoa the obligation is imposed can do directly or indirectly, by supervision or inspection, by improvement of his business methods or by exhorting those whore he may be expected to influence or control, which will promote the observance of the obligation."

13. Thus Lord Diplock is, in effect and almost exactly in wording, following the principles which had earlier been set out in Lim Chin Aik v. The Queen⁽¹⁾

14. A more recent authority is the Hong Kong case, considered by the Privy Council of Gammon (Hong Kong) Ltd. v. Attorney General^(5). The general principles which should govern the court, in deciding the question of whether or not a statutory provision has constituted an absolute offence, are set out at paragraphs e to g on page 508, as follows -

 

"In their Lordships' opinion, the law relevant to this appeal may be stated in the following propositions (the formulation of which follows closely the written submission of the appellants' counsel, which their Lordships gratefully acknowledge: (1) there is a presumption of law that wens rea is required before a person can be held guilty of a criminal offence; (2) the presumption is particularly strong where the offence is 'truly criminal' in character; (3) the presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute; (4) the only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern; public safety is such an issue; (5) even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the stattute by encouraging greater vigilance to prevent the commission of the prohibited act."

15. Of the five considerations which are set out in this passage, the ones with which I am principally concerned are (4) and (5) Firstly, is this a situation in which a statute is concerned with an issue of "social concern"?  In so far as the latter phrase differs from the slightly severer test of LIM Chin-aik⁽¹⁾ where the phrase "grave social evil" is used, I adopt the Gammon⁽⁵⁾ test, as it is a more recent case and a Hong Kong appeal.

16. The Employment Ordinance, according to its long title, is intended to provide for the protection of the wages of employees, regulate general conditions of employment and employment agencies and deal with matters connected therewith.

17. Quotations from the judgments, to which I have already referred, place an obligation on the courts, when attempting to interpret regulations of this kind, to define as best they can the intention of the legislature, which lay behind the regulations concerned.

18. I believe that the Employment of Children Regulations are intended to secure the safety, health and welfare of children and that the legislature has taken the view that these indisputable objectives will be furthered by a prohibition of an absolute nature against the employment of children under certain ages in certain kinds of activity.

19. Subject to what I have to say later about other Hong Kong cases, I have no difficulty in finding that this is an issue of social concern and that the intention of the legislature was to displace the normal presumption that mens rea must be shown in relation to the employment of children under the age of 15 in industry.

20. I now pass to the fifth consideration set out in the Gammon Case⁽⁵⁾, which is that the presumption of mens rea stands unless it can also be shown that creation of strict liability will be effective in promoting the objects of the statute, by encouraging greater vigilance.

21. It has been been submitted, on behalf of the respondent, that because there is already placed upon every prospective employer an obligation to require a prospective employee, to produce an identity card, this requirement is, by itself, a sufficient precaution, if conscientiously followed, against any breach of the regulation.

22. I do not agree. I cannot that accept it is sufficient merely for an employer to require the production of an identity card. He gust also take reasonable precautions to ensure that the identity card is a valid one and that it relates to the person who produces it.

23. In this instance, the respondent did take the precautions that a sensible prospective employer should take. I regard this as an important factor in deciding the extent of any penalty which ought to be imposed upon him, but not as an arguument that strict liability will be ineffective in securing compliance with the regulation.

24. I believe that the creation of strict liability is effective in promoting the objects of the regulation to the extent that it should help to persuade employers to be careful as it is possible to be in not employing children in industry and that this will make it less likely that the regulation will be infringed.

25. There remain two other arguments advanced on behalf of the respondent.

26. The first was based on the interpretation of the regulation itself and the effect of its wording; the second, a submission that two earlier Hong. Kong decisions to a contrary effect are binding upon me.

27. The wording of the relevant regulation is as follows -

28. Mr. Hoosen referred me to two passages in Sweet v. Parsley⁽⁴⁾ at pages 162 and 165 -

      (b)     Referring to section 5 of the Dangerous Drugs Act, Lord Diplock comments -

"Here the word 'permits', used to define the prohibtied act, in itself connotes as a mental element of the prohibited conduct knowledge or grounds for reasonable suspicion ...".

29. Mr. Hoosen argues, therefore, that the reference to 'permit' in regulation 4(1) necessarily imports, so far as that word is concerned, a degree of knowledge. if that is so, he says, a degree of knowledge must also be required in the earlier part of the regulation, namely, in relation to the phrase 'no person shall employ'.

30. I do not agree with this submission. I see no reason why the same regulation should not constitute an offence which can be committed in various ways, some of which require a criminal intent or mens rea to be established and others which are of an absolute nature.

31. I therefore find that section 4(1) creates an absolute offence, with regard to the employment of a child in an industrial undertaking even though causing or permitting may require a criminal intent on the part of the defendant to be established.

32. In 1978, the same judge of the High Court decided two cases dealing with the employment of young girls. In TAM Wing-him v. The Queen⁽⁶⁾, he decided that mens rea as to the age of a person employed in a bar was an ingredient of the offence charged.

33. The appellant had been charged with permitting the employment on the premises of a person under the age of 14 years, contrary to the Dutiable Commodities (Liquor) Regulations. It is to be noted, however, that the Crown had conceded that it was necessary to establish mens rea so that the case was decided on the establishment of the fact of the girl's employment and whether or not the defendant knew that the girl was under the permitted age.

34. In LEE Fu-yuen v. The Queen^(7), the judge had to decide whether the defendant had employed a girl under the age of 18 in a dance hall contrary to the Miscellanceous Licences Regulations. At page 529, he observed -

 

"I find it difficult to differentiate the type of evil to see young girls being lured into a licensed bar, what is commonly known in Hong Kong as the 'girlie bar', and that of young girls being lured to a dance hall. The type of social evil is the same. Thus I do not see any difference between say, an offence under the Dutiable Commodities (Liquor) Regulations and the offences under the Miscellaneous Licences Regulations. In one set of regulations, learned counsel for the Crown conceded, that wens rea is a necessary ingredient of the offence in the Dutiable Commodities (Liquor) Regulations. I do not see why the offence created by regulation 63 of the Miscellaneous Licences Regulations should be different."

35. Both of these regulations were similar in object and in content, being designed to protect girls below a certain age against the undesirable acquaintances they would make, and influences they would meet, in bars and dance halls.

36. However, I doubt if the judge ever directed his attention to the question of whether or not these offences were absolute ones. In view of the earlier concession of the Crown, that the employment of a girl under the age of 14 in a bar required guilty knowledge to be established, the judge could hardly have come to a different conclusion in relation to a girl employed in a dance hall.

37. Nevertheless, if it had been necessary for me to interpret those regulations, I would have felt it necessary to follow those decisions. But I do not consider myself to be bound by them in relation to legislation which is intended to protect children against different dangers, namely, premature employment in industry.

38. In considering legislation of this kind it is necessary for a judge to adopt, when considering the likely intention of Parliament, an assessment of the importance which the legislature gives to the protection of those with whom the legislation deals. The fact that one judge, for whatever reason, came to the conclusion that legislation to protect girls against employment in bars is not of such a nature that the presumption of guilty intent was overturned, does not, as I see it, prevent me from reaching a different conclusion in relation to different legislation. In my opinion, the question which has been posed by the magistrate - "Was I correct in ruling that the offence is not an absolute one and that mens rea is a necessary element?" should be answered in the negative.

39. The Crown, in my view entirely reasonably and properly, has not asked that the matter be sent back to the magistrate with a direction to convict. I had earlier given an indication, and I think I should record it in my judgment that, in this instance, the employer had taken reasonable precautions to ascertain that the girl was of a proper age and had been deceived by the girl. Thus in a "moral" sense, no blame lies on the respondents and 1 would like to make that perfectly clear.

(1)    [1963] A. C. 160

(2)    [1884] L. R. 13 Q. B. D. 207, D. C.

(3)    [1895] 1 Q.B. 918

(4)    [1970] A. C. 132

(5)    [1984] 2 All E. R. 503

(6)    [1978] H. K. L. R. 404

(7)    [1978] H. K. L. R. 522