THE DAIRY FARM CO LTD v. DIRECTOR OF FOOD AND ENVIRONMENTAL HYGIENE

cacv 283/2004

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 283 of 2004

(on appeal from HCAL NO. 59 of 2004)

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J U D G M E N T

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Hon Rogers VP:

1.  This is an appeal from a judgment of Chu J given on 18 August 2004.  The matter before the judge was an application for judicial review against 2 decisions made on 5 May 2004 by a magistrate sitting at Shatin Magistracy.  The judge below refused the application for judicial review.  At the conclusion of the hearing of this appeal, judgment was reserved which we now give.

Background

2.  The application for judicial review was in respect of the magistrate’s refusal of the applicant’s application to order a permanent stay of the prosecution and in respect of the adjournment of the applicant’s application for costs under section 17 of the Costs in Criminal Cases Ordinance, Cap. 492 to the conclusion of the trial.

3.  The applicant was charged with possessing for sale 2 pieces of pork, one weighing 11.42 kg and the other weighing 12.28 kg which had not been slaughtered in a Government slaughterhouse or in a slaughterhouse approved by the director and which had not been lawfully imported into Hong Kong in accordance with the Imported Game, Meat and Poultry Regulations.  In those circumstances it was alleged that the pork in question was prohibited food of the type specified under item 2 of Schedule 1 of the Food Business Regulation made under Cap. 132.  Therefore, amongst other things which the prosecution needed to prove was that the pork in question had neither come from a Government or an approved slaughterhouse nor was it imported in accordance with the regulations.

4.  The prosecution case was that the 2 pieces of pork were found in the applicant’s shop at New Town Plaza, Shatin at about 8.15 am on 22 December 2003.  As will be explained below, the prosecution did not rely on any direct evidence as to the provenance of the meat, nor did it claim that the meat itself had qualities which demonstrated an illegal provenance but relied entirely upon inference.

5.  Hartmann J granted leave to apply for judicial review on 13 May 2004 and 3 days later ordered that the hearing of the application be expedited.  The applicant sought the following orders:

“	(1)	An order of certiorari to quash the decisions of the magistrate refusing the application for permanent stay and adjourning the question of costs to the conclusion of the trial; and
	(2)	An order remitting the matter to the magistrate with a direction to reconsider the two decisions according to law.”

Trial in the Magistrate’s Court

6.  The trial in the Magistrate’s Court commenced on 3 May 2004.  More than two weeks prior thereto, on 17 April 2004, 2 statements were served on the prosecution under the provisions of section 65B of the Criminal Procedure Ordinance, Cap. 221.  That evidence related to several matters.  In the first place it related to the fact that a concessionaire was responsible for the sale of fresh pork products at the applicant’s supermarket where it is alleged that the offence took place.  The concessionaire supplied the fresh pork.  It purchased the stocks of fresh pork from another company, which was named.  Under the terms of the concession agreement, the concessionaire was responsible for the costs of the pork, the fresh pork and even the employees’ wages.  It was a term of the concession agreement that only fresh pork slaughtered at a Hong Kong Government approved slaughterhouse may be sold at the counter.

7.  The other matters covered by the statements were as to the operation of the slaughterhouse and the fact that on some occasions there might be as little as three chops or stamps on a carcass.  After the carcasses were removed from the slaughterhouse they were cut into six pieces.  On average there would be 100 carcasses a day that would be purchased by the concessionaire’s supplier and on the day in question 18 pigs had been purchased for sale at the particular location.

8.  On 6 April 2004, the applicant’s solicitors wrote to the respondent requesting various matters in relation to the prosecution.  In the penultimate paragraph, the letter stated:

“(7) Other Unused Material

Is there any other ‘unused material’ not specifically requested in this letter which should be disclosed to the defence in light of the House of Lords decisions in R v. Mills and Poole [1997] 3 WLR 458, R v. Brown [1997] 3 WLR 447 and the decision of the Hong Kong Court of Appeal in HKSAR v. Lau Ngai Chu, Criminal Appeal No. 228 of 2001.  If so, please provide copies.”

9.  The respondent replied on 15 April 2004.  Some of the materials sought by the applicant’s solicitors were provided and it was indicated that the remaining information required would be provided when available.

10.  On 23 April 2004, the respondent wrote to the applicant’s solicitors dealing with the remaining materials sought in the letter of 6 April 2004.  In respect of request (7), the respondent’s letter replied as follows:

“(7) Other Unused Material

There is no other ‘unused material’ with the Prosecution.”

11.  The first prosecution witness stated that there had been an operation on 22 December 2003 the purpose of which was to inspect the licensed fresh provision shop inside the applicant’s supermarket.  It was said that at 7.55 am 2 officers of the Food and Environmental Hygiene Department entered the shop.  The witness said that all the pork which was contained in baskets was brought out and that he found 2 pieces of pork which he suspected were not of legal origin because they did not have a chop or stamp of the Government slaughterhouse. 

12.  The second witness gave evidence that she had been in plain clothes and at about 7.55 am had purchased a piece of pork but that piece had been found to have a blue stamp which was that of a slaughterhouse.  It was therefore not considered to be suspect.  She then referred to the two pieces of pork which were the subject of the charge and said that one of those bore an oval shaped light blue coloured stamp that was blurred.  It emerged during the cross-examination that the applicant had never been informed about the purchase of the piece of pork although there had been reference to it in a witness statement handed to the prosecution section.  That statement seemingly had never been passed on to the applicant.  The witness also said in cross-examination that that morning she had inspected 36 pieces of pork contained in baskets, the baskets contained an average of three pieces of pork in each, and that in total there had been some 38 baskets of pork inside the premises all containing an average of three pieces of pork each.  When questioned as to the relevance of the absence of a stamp the following interchange took place:

“	Q.	But, on any individual cut, piece of pork, if you see no stamp, I suggest you can make no conclusion at all about where it’s come from, from the fact that the stamp is not there.
	A.	According to the instructions of our operation, it states that if it comes from a slaughterhouse then there should be stamp on its forequarter.”  (Tr p. 37 E-H)

13.  From that it may be deduced that this was simply the approach adopted on behalf of the prosecution.  During the course of the second witness’ evidence it emerged that she had a notebook.  Examination of that showed that an investigation had been carried out on 20 December as well as on 22 December.

14.  The third witness revealed in evidence that there had been investigations that had been undertaken by officers of the Food and Environmental Hygiene Department for about one week prior to 22 December 2003.

15.  It was at that juncture that the application for a stay of the proceedings was made.  In the course of that application the applicant was furnished with an e-mail dated 17 December 2003.  The e-mail had been sent to various senior officers of the Food and Environmental Hygiene Department including the officer who was responsible for the prosecution.  That e-mail disclosed the fact that there had been surveillance operations against four branches of the applicant’s supermarkets.  It revealed the identity of the vehicle responsible for delivery of pork to three of the shops.  In respect of one of the premises it is stated that “No government inspection stamp mark was seen on 2 uncovered unskinned pork cuts of shoulder portion inside the meat processing room’s table” and in respect of another it is said “A numerical no., ‘29’ in blue was seen written on an uncovered unskinned pork cut at the top sieve.”  Interestingly, despite these observations, the e-mail concluded that there was “… no concrete evidence that the meat is from dubious source all meat found cut inside the fresh meat portion.”

16.  The trial magistrate held that the documents retained by the prosecution and previously not disclosed to the applicant were disclosable but went on to hold though that there would not be a permanent stay of prosecution.  No reasons were given either for holding that the documents were disclosable or for the decision that there should not be a permanent stay.  The trial was adjourned to new dates to be fixed, with 5 days reserved.

The Judicial Review

17.  After leave had been granted by Hartmann J to apply for judicial review, the matter was heard by Chu J who approached the matter on the basis that in order to succeed in the challenge that the magistrate’s two decisions were Wednesbury unreasonable, the applicant had to show that no reasonable tribunal would have reached the same decisions and that it had to show that the arguments in support of the stay application and an immediate determination of the costs application were completely unanswerable.  Despite the fact that the respondent did not file any evidence or seek to explain how it came about that the prosecution was directed in the way it was, the judge said that it could not be the only reasonable conclusion that the respondent was practising deliberate concealment actuated by bad faith.  The judge then came to the conclusion that it was “… not utterly impossible that the nondisclosable (sic) was due to a failure to appreciate the relevance of materiality of the documents in the light of the law that has developed.”

This appeal

18.  At the commencement of this appeal, this court asked the respondent what the basis of the prosecution was.  Mr Reading SC made it clear that the only evidence that would be put forward in support of the prosecution that the pork had not come from a Government approved slaughterhouse was the absence of a chop or stamp on the two pieces of pork.  Despite the evidence served under section 65B, it would be the prosecution case that 8 stamps were put on each of the 8,500 carcasses each day by hand as the carcasses were processed through the slaughterhouse.  There would be no evidence that the pork was in any other way inferior.  There would be no evidence, whether of a DNA nature or otherwise, to show the provenance of the pork.  It would not be part of the prosecution’s case that the blurred stamp on one of the pieces of pork indicated a provenance from some slaughterhouse not of Government approval.  It would seem that there would be no evidence to suggest that the concessionaire had been acquiring meat from unauthorised sources or which had not been slaughtered in a Government approved slaughterhouse.  One might add that it was not suggested that the pork in question had been frozen pork.  Indeed, it might be said that any competent cook would be well able to distinguish between frozen pork and fresh pork.  On the basis that it was an admitted fact that the Government approved slaughterhouse handled some 8,500 carcasses each day and that all the chops or stamps were affixed to the carcasses by hand, the respondent was asked whether it could be seriously contended that the evidence that would be proffered would be sufficient to establish the applicant’s guilt beyond a reasonable doubt.  Regrettably, after an ample adjournment, it was indicated that the respondent wished to proceed on the basis that the prosecution would continue.

19.  Before proceeding further it is sufficient to state that there is no requirement that pork which is sold in a shop should bear a chop or stamp of a Government approved slaughterhouse.  The only requirement relating to marking meat is contained in the Slaughterhouse Regulations made under the Public Health and Municipal Services Ordinance, Cap. 132.  Regulation 22 provides that a carcass must be marked with a mark of the type shown in Schedule 5 of the Regulations.  Thus by law there need only be one chop or stamp on a carcass.  Interestingly also, Regulation 25 provides that a carcass may only be transported in an approved vehicle.  Hence, the task of tracing the source of meat should be considerably eased.

20.  In my view this was a matter not simply of unused material being withheld.  It was a case where the prosecution was put on a false basis.  The evidence presented by the prosecution was deceptive.  The prosecution sought to have the court draw the inference that the pork had not come from an approved slaughterhouse on the basis that 2 pieces of pork did not bear chops.  The prosecution was presented upon the basis that the fact that an investigation had been carried out at four different shops of the applicant for one week would not be part of the material which the court would be asked to consider in deciding whether the inference as to provenance should be drawn.  Neither was the prosecution going to present to the court the fact that other purchases had been made of pork which was considered to have come from an approved slaughterhouse.  Nor that contemporaneous investigations had revealed other unskinned pork pieces where the conclusion had been that there was no evidence that the source was dubious. 

21.  In the circumstances the decision to present the case by only telling the court “half” truth had the effect of distorting the prosecution case in a very material way and thus being deceptive.  In circumstances where it is impossible to see how it can be said that it is beyond a reasonable doubt that the pork cannot have come from an approved slaughterhouse simply because 2 pieces of pork did not have chops, there must be a reasonable doubt which would prevent the inference being drawn and thus it is impossible to see how conviction could follow. 

22.  The decision to present the case in this way with distorted evidence can only have been deliberate.  Even without the applicant’s request in the letter of 6 April, it would be clear to anybody that, if a court were to be asked to draw an inference based on indirect facts, care must be taken to present the necessary facts.  The writer of the letter of 23 April was himself a recipient of the subsequently revealed e-mail of 17 December.  His failure to explain himself after having been given an adequate opportunity to do so reflects badly.

23.  Mr McCoy SC, who appeared for the applicant, did not argue the case on the basis that it was impossible to have a fair trial.  The jurisdiction of the court to stay proceedings, in cases where a fair trial is still possible was considered in the case in HKSAR v Lee Ming Tee & Securities and Futures Commission [2004] 1 HKLRD 513.  At paragraph 182 Sir Anthony Mason NPJ referred to the principle stated by Lord Steyn in R v Latif [1996] 1 WLR 104 at p. 112G-H:

“In this case the issue is whether, despite the fact that a fair trial was possible, the judge ought to have stayed the criminal proceedings on the broader considerations of the integrity of the criminal justice system.  The law is settled.  Weighing countervailing considerations of policy and justice, it is for the judge in the exercise of his discretion to decide whether there has been an abuse of process, which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed: Reg. v. Horseferry Road Magistrates’ Court, Ex parte Bennett [1994] 1 A.C. 42.”

24.  He went on to say that it was generally recognised that there would have to be exceptional circumstances for a stay to be granted when a fair trial is possible and he referred to the observations of L’Heureux-Dubé J in R v O’Connor (1996) 130 DLR (4^th) 235 at p. 277B-C.  In that case the judge said that a stay of proceedings was only appropriate in the clearest cases.  Apart from circumstances where the right of the defendant to receive a fair trial was jeopardised, there would also be cases where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued.  However, Sir Anthony Mason purposely did not limit those circumstances but cited again from what was said by Lord Steyn in R v Latif, “an infinite variety of cases could arise.”

25.  After coming to the conclusion that it was for the Court of Final Appeal to exercise the discretion as to whether there should be a stay, Sir Anthony Mason said that the court should take into account the public interest in the detection and punishment of crime and, particularly, serious crime and the public expectation that persons charged with serious criminal offences will be brought to trial unless there is some powerful reason for not doing so.  Amongst the countervailing considerations were that the court should have regard to preserving the integrity of the criminal justice system and also the serious burden imposed upon the defendant facing a second lengthy trial.  One of the matters which weighed in his decision was that the breach of duty to disclose in that case had not been shown to have been a case of bad faith.

26.  In the present case, the summary offence only carries a maximum penalty of $50,000.  But it was urged by Mr Reading on behalf of the respondent that the provision of food, and in particular meat, from unapproved sources was a serious matter.  That is no doubt true.  But what must be borne in mind in this case is that the party wholly responsible for procuring the allegedly offending pork was not prosecuted in this case.  At the time that the pork was seized by the inspectors it was undoubtedly still in the possession of the concessionaire; it had been brought into the applicant’s premises by the concessionaire; it had been dealt with all along by the concessionaire and the applicant had had no say whatever in the procurement, examination, choice or preparation of those pieces of pork.  Those matters were entirely in the control of the concessionaire.  The protestations, therefore, on the part of the prosecution that the matter was serious were undermined by the fact that the prosecution was not brought against the party responsible for the alleged offence.  It might be added in this regard that not only did the Slaughterhouse Regulations in relation to the transport vehicles give the authorities power to identify the vehicles in which the pork carcasses were transported but it would seem from the e-mail of 17 December that there was no difficulty in discovering which vehicles transported the meat to the applicant’s premises.  In those circumstances it is perhaps even more surprising that this prosecution has been confined to the party who was not responsible for acquiring, processing and supplying the meat in question. 

27.  What exact meaning should be given to the words “bad faith” in the present context is not entirely clear on authorities.  The judge below acquitted the prosecution of bad faith.  In my view, the presentation of the case was, for the reasons already explained, such as to lead the court into the serious error of drawing an inference based upon “half” truths.  The only conclusion that can be drawn is that the decision to present the case in that way was deliberate.  In the absence of any explanation from the prosecution as to why the letter of 6 April was not answered properly, let alone why the prosecution case was presented in such a distorted way, there is simply no escaping from that.  In the circumstances of the case where the proof of the commission of an offence rests entirely on the drawing of an inference from indirect facts, the distortion of the prosecution evidence by the failure to give the full facts was, in my view, culpable.  It is not the function of the prosecution to secure a conviction at all costs.  By distorting the evidence upon which it is said that an inference should be drawn the prosecution has in this case broken faith with the court.  I am driven to the conclusion that it must be said that the prosecution was presented in bad faith.

28.  That is, of course, not the end of the matter.  I bear in mind the prosecution was only at a midway point at the time that there was an adjournment.  It is undesirable that there should be appeals and applications at an interlocutory stage of prosecutions with a view to stifling the prosecution.  This court is mindful that it is undesirable to encourage judicial review proceedings in such circumstances as it would have a tendency to prolong proceedings and make what should be comparatively simple prosecutions into long, drawn out litigation with consequential satellite litigation. 

29.  The magistrate gave no reasons for the decision not to stay the proceedings.  It is clear that the magistrate proceeded on the basis that there had been, at the very least, a failure of disclosure.  That can be the only conclusion drawn from the decision that the prosecution was required to disclose material which thitherto had not been disclosed.  What is not clear is that the magistrate appreciated the significance of the way in which the case had been presented by the prosecution.  From the absence of any indication from the magistrate that the prosecution had sought to present a case based on inferences by not putting the relevant facts before the court, it can only be assumed that the importance of the way the prosecution had been presented was not appreciated.  In circumstances where a stay is sought on the basis that there has been an abuse in the prosecution process and the facts have been held to exist which form the basis for that allegation of abuse, albeit that holding was in the context of failure to disclose unused material as opposed to a failure to present the case properly, it seems to me that it is incumbent on the magistrate to give, at the least, some outlined reasons for the refusal of the stay.  Those reasons need not be extensive, but where the defendant has a justifiable grievance in the manner in which the prosecution has hitherto been presented, it is not sufficient to dismiss an application for stay without giving reasons.

30.  The judge below approached the case on the basis that it had to be shown that no reasonable magistrate could come to the conclusion otherwise than that there should be a stay.  The question, however, is whether the decision not to stay the proceedings was unreasonable.  In the absence of reasons, the person applying for the stay is entitled to know that the decision was correct.  As pointed out, on the face of the matter, the prosecution had broken faith with the court and this was not alluded to in any way when the refusal of stay was announced.  In those circumstances there is a sufficient reason for the decision to be reviewed on judicial review.

31.  On the basis that it is open to this court to exercise the discretion anew as to whether to grant judicial review I consider that the following matters are relevant.  In the first place the prosecution has broken faith with the court in a very serious way.  Up until now it has not been demonstrated that it is prepared to present a case by giving a full and fair view to the magistrate upon which it would be proper to draw inferences that the pork in question did not come from a Government approved slaughterhouse.  The prosecution has been brought against the party which is not primarily responsible for any offence that might have been committed.  Indeed, the culpability of the applicant for any alleged offence would appear to be technical or, at the very most, minimal.

32.  I bear in mind the sentiment which was been expressed above that it would be highly undesirable to encourage satellite litigation in respect of criminal prosecutions which are intended for summary trial.  The work of the magistrates courts would come to a grinding halt if prosecutions were to be bedevilled by applications for judicial review on the basis that the prosecution had a weak case.  But that is not the situation here.  Judicial review is not granted because the prosecution’s case is weak, but a factor which cannot be ignored in the exercise of the discretion is that this court cannot see how, at the end of the day, it can be proved beyond a reasonable doubt that the pork in question did not come from a Government approved slaughterhouse on the inferences sought to be drawn from the limited evidence on which the prosecution seeks to rely.

33.  Nevertheless, a refusal of judicial review in this case would result in the matter being remitted for further trial.  In view of what has been said as to the shortfall in the prosecution case as regards proving the case beyond a reasonable doubt, to remit the matter to the magistrate for trial would not only place the magistrate in an invidious position because of the strong views that had been expressed about the outcome of the case but, looked at from the point of view of the “public expectation”, the question which would arise in the public mind would be whether the legal system was bedevilled by form at the expense of efficient administration of justice.

34.  In my view the applicant is entitled to the orders sought.  The conduct of the prosecution, as already stated, has been such that the integrity of the system of justice would be impaired if the prosecution were permitted to continue.  The presentation of the case on the false basis was culpable.  The factors relating to the seriousness of the charge itself are far outweighed by the bringing of the prosecution against a party that was in the circumstances only peripherally involved and not against the party that brought about the acts complained of.

Hon Le Pichon JA:

35.  I agree.

Hon A Cheung J:

36.  I agree.

Hon Rogers VP:

37.  The appeal will, therefore, be allowed.  The Court makes the following orders nisi:

(1)	An order quashing the decision of the magistrate made on 5 May 2004 at Shatin Magistracy in STS 120/2004 refusing to order a permanent stay of the prosecution of the applicant and an order remitting the matter to the magistrate with a direction to order a stay of the proceedings.
(2)	A direction to the magistrate to grant a permanent stay of the prosecution.
(3)	Costs to the applicant here and below.

There will be liberty to the parties to apply for any further or other order.