THE QUEEN v. SOO FAT HO

Magistracy Appeal
No 982 of 1991

1)    The failure by a prosecuting authority to prosecute a particular alleged offender or offenders in general is not a matter that is relevant to the exercise by a court of its power to stay proceedings on the ground that they constitute an abuse of its process. R v. Li Wing-tat [1991]1 HKLR 731 (the loudhailer case) was wrongly decided (see pp. 5-8).

2)     The special presumption in favour of a strict interpretation of penal statutes is displaced by section 19 of the Interpretation and General Clauses Ordinance Cap. 1 (see page 9 et seq).

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JUDGMENT  O F  THE  COURT

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Macdougall, J.A.:

1. The appellant was convicted after trial before Miss B. Chainrai at San Po Kong Magistracy of an offence against regulation 6(1) of the Marine Fish Culture Regulations, Cap. 353.

2. His appeal against conviction comes before this court byway of a direction pursuant to section 118(d) of the Magistrates Ordinance, Cap. 227.

3. The charge on which the appellant was convicted alleged that he "on the 11th day of December 1990 at the Sham Wan fish culture zone, Tai Tan Hoi Hap in Hong Kong being the licensee, did permit to be erected structures on rafts without the written permission granted by the Director in accordance with regulation 6(2) contrary to regulations 6(1) and 11(2) of the Marine Fish Culture Regulations, Cap. 353."

Regulation 6 provides as follows:

"6(1)     Except with the written permission of the Director, no licensee or permittee shall erect, or permit to be erected, any structure on a raft.

    (2) The Director shall specify in the permission granted for the purpose of paragraph (1). the dimensions of the structure permitted and any conditions subject to which the permission is granted.

    (3) The Director may remove, or cause to be removed, any structure that is erected in contravention of paragraph (1) or any structure that is not in accordance with the permission granted."

4. "Director" is defined in section 2 of the Marine Fish Culture Ordinance as the Director of Agriculture and Fisheries.

5. Paragraph (2) of regulation 11 provides that any licensee or permittee who contravenes regulation 6(1) or any permission granted for the purpose of regulation 6(1) commits an offence.

6. Although all the other regulations of the Marine Fish Culture Regulations came into operation on the day on which they were passed, namely 23 January 1981, paragraph (2) of regulation 1 provided that regulation 6 was to come into operation on a day to be appointed by the Governor by notice in the Gazette. It was not until 1 September 1990, almost ten years later, that regulation 6 in fact came into operation.

7. However, it became apparent during the course of the trial before the magistrate that officers of the Department of Agriculture and Fisheries erroneously thought that regulation 6 had come into operation at the same time as the other regulations.

8. The undisputed evidence was that since 23 October 1984 the appellant had been granted a licence annually by the Director to engage in fish culture within the Sham wan fish culture zone, Tai Tan Hoi Hap, pursuant to section 8 of the Marine Fish Culture Ordinance, and that since at least 1984 he had upon his mariculture rafts in that zone certain structures which were used principally for the storage of equipment and for shelter.

9. It was also undisputed that the area of the structures upon the appellant's rafts, which had varied over the years from 32.55 m² to 42.19 m², had failed to comply with the conditions stated on every mariculture licence issued to him since 1984, and that on an unspecified date in August 1988, on 21 June 1989 and on 15 August 1990 the appellant had been notified that the area of the structures on his rafts exceeded the area of 29.9 m² permitted by the Director. The appellant's annual mariculture licences bore an endorsement that the permitted structure area was 29.9 m².

10. When asked by defence counsel in cross examination, as to the nature of these warnings, Mr. Yim, a fisheries officer, replied that he could not remember the details concerning the appellant's case but that warning letters which had been issued between 1988 and 1989 to persons who had breached the provisions of the Ordinance had requested that the irregularities concerned be rectified and warned that prosecution action would be taken in the event of failure to do so.

11. When shown a warning letter that had been sent to the appellant on 11 January 1989, the witness agreed that it threatened prosecution action under regulation 6 and that that regulation had not come into operation at that time. An examination of the letter reveals, however, that it contained a warning that failure to remedy the alleged breach of the regulation may, not would, result in prosecution.

12. After hearing submissions at the close of the prosecution case, the magistrate ruled that the appellant had a case to answer. Mr. Hatton, counsel for the appellant, then applied for a stay of proceedings on the ground that the proceedings were an abuse of the process of the court. In making this application he relied on the decision of the Chief Justice in R. v. Li Wing-tat [1991]1 HKLR 731.

13. The magistrate rejected the application and the trial proceeded. The appellant then elected not to give or call evidence. Mr. Hatton again applied for a stay of proceedings and the magistrate again ruled against the application. The appellant was then found guilty and convicted.

    The magistrate made the following findings of fact:

"(1)     The appellant had been licenced since October 23, 1984 by the Director of Agriculture and Fisheries to engage in fish culture within the Sham Wan Fish Culture Zone.

(2)    His licence to engage in fish culture within the Sham Wan Fish Culture Zone was renewed annually by the Director of Agriculture and Fisheries Department.

(3)    Under s.8(3) of the Marine Fish Culture Ordinance, Cap.353, the Director could renew a licence subject to such conditions as the Director thought fit.

(4)     On December 11, 1990, the appellant was the holder of an annual mariculture licence number 2396 in respect of the Sham Wan Fish Culture Zone at Tai Tan Hoi Hap.

(5)     The said mariculture licence (Ex.P2) was issued to him with an endorsement that the permitted structure area on the appellant's said mariculture rafts should not be greater than 18 m² .

(6)     On December 11, 1990, when PW1 inspected the appellant's mariculture rafts, he found the total area of structures erected on the appellant's mariculture rafts was 38.4 m² and in excess of the permitted total structure area of his mariculture licence, namely 18 m².

(7)     Written permission had not been granted by the Director of the Agriculture and Fisheries Department in accordance with s.6(2) of the said regulations for the erecting of the said structures.

(8)    The structures on the appellant's rafts had been erected prior to Regulation 6(1) of the Marine Fish Culture Regulations, Cap.353, coming into operation on September 1, 1990.

(9)    The appellant, did, on December 11, 1990, permit to be erected structures on his rafts without any written permission granted by the Director in accordance with regulation 6(2) of the said regulations."

14. Mr. Hatton advanced what were in substance two grounds of appeal, First, he submitted that on the authority of Li Wing-tat the magistrate had wrongly refused to grant the appellant's applications that the proceedings be stayed on the ground that they were an abuse of the proceedings of the court. In essence, Mr. Hatton contended that the fact that the appellant had not previously been prosecuted in respect of the structures erected on his rafts, notwithstading his failure since 1984 to comply with the conditions on his annual mariculture licences in respect of the permissible dimensions of those structures, gave rise to a legitimate expectation by the appellant that breach of those conditions would not attract prosecution. In this court Mr. Hatton relied, as he had done earlier before the magistrate, on the decision in Li Wing-tat.

15. In that case the Chief Justice, having considered Keung Siu-wah v. Attorney General [1990] 2 HKLR 238; R. v. Harris [1991] 1 HKLR 389; Moevao v. Department of Labour [1980] 1 NZLR 464 and CCSU V. Minister for the Civil Service [1985] 1 AC 372, said this:

"     The facts of the present case do not fall readily within any of the known categories. (He was here referring to five categories of abuse suggested by counsel for the Crown) The categories are however never closed. Bearing in mind the Court's reluctance to extend the categories, I would say that it offends against the sense of fairness for the police, having established a regular practice of not prosecuting over a long period of time, thereby leading those who are concerned to arrive at a legitimate, or reasonable, expectation that such practice will continue, to suddenly alter that practice without prior warning and start, prosecuting those very same offences which had attracted nothing worse than a warning, or repeated warnings, in the past."

He concluded later that:

"     In my judgment a case of abuse of the Court's process has been made out. The trial magistrate should have exercised her discretion to stay the proceedings."

16. With the greatest of respect we find ourselves unable to accept that an earlier failure to prosecute a particular alleged offender or, indeed, offenders in general, is a matter that is relevant to the exercise by a court of its power to stay proceedings on the ground that they constitute an abuse of its process. This is so whatever may have been the reason for the failure of the prosecuting authority to take prosecution action in the past.

17. The concept of "legitimate expectation" applied in Li Wing-tat was borrowed from the civil law. It has no place in the criminal law. The decision in CCSU v. Minister for the Civil Service that, apart from considerations of national security, unions and employees had a legitimate expectation that they would be consulted before the Minister for the Civil Service varied the terms and conditions of service of those employees with effect that they would no longer be permitted to belong to national trade unions, is of no relevance to the criminal process where a duty to the public is cast upon the authority entrusted with the policing of an ordinance to enforce its provisions. This duty is, of course, subject to the undoubted wide discretion as to whether or not there will be a prosecution in any particular case. (See R. v. Commissioner of Police of the Metropolis. Ex parte Blackburn [1968] 2 Q.B. 118.)

18. We think it pertinent also to refer to the observation of Lord Lane CJ in Attorney-Generals Reference (No. 1 of 1990) reported in The Times on 16 April 1992:

"However, as stated by Lord Morris in Connelly : 'Generally speaking a prosecutor has as much right as a defendant to demand a verdict of a jury on an outstanding indictment and where either demands a verdict, a judge has no jurisdiction to stand in the way of it'. In principle, stays imposed on the grounds of delay or for any another reason should only be employed in exceptional circumstances. If they were to become a matter of routine, it would only be a short time before the public, understandably, viewed the process with suspicion and mistrust".

19. It is our respectful view that Li Wing-tat proceeded on an erroneous view of the law. The fact that the Director had renewed the appellant's mariculture licence every year since 1984 with full knowledge that the applicant had been in constant breach of the condition on the licence concerning the maximum area of structures on rafts, and the fact that threats or warnings that prosecution action would be taken were made or given before regulation 6 came into operation, did not render the bringing of the present prosecution an abuse of the court's process. The magistrate was entirely correct in rejecting the applications that the proceedings be stayed.

20. The second ground of appeal was that the magistrate, having correctly found that the structures on the appellant's rafts had been erected prior to the date on which regulation 6(1) came into effect, erred in law in finding the appellant guilty of permitting the structures to be erected on the rafts on the date stated in the charge, namely 11 December 1990.

21. In her Statement of Findings the magistrate gave the following reason:

"Regulation 6 must be construed as applying to structures on the rafts of the date of the offence. That those structures were there prior to Regulation 6 coming into operation is irrelevant. The word shall in Regulation 6 must be construed to be mandatory in effect, imposing an obligation on the licensee or permittee not to 'permit' to be erected on the mariculture rafts any structure unless it was with the permission, in writing, from the Director of Agriculture and Fisheries Department."

22. Mr. Hatton submitted that the magistrate had, in effect, wrongly construed the regulation as having created a continuing offence. He contended, first, that had it been intended to make it a continuing offence the legislature would have used the words ".... no licensee or permittee shall erect, or permit to remain erected, any structure on a raft" instead of the words ".... no licensee or permittee shall erect, or permit to be erected, any structure on a raft." Secondly, he submitted that, being a penal provision, regulation 6 must be construed strictly in favour of the appellant.

23. We shall deal first with Mr. Hatton's second submission that because regulation 6 is a penal provision we should interpret it strictly in favour of the appellant. But even that principle has its limitations. In DPP v. Ottewell [1970] AC 642, a case involving the interpretation of section 37(2) of the Criminal Justice Act 1967, Lord Reid said at p.649:

"The Court of Appeal (Criminal Division) refer to the well-established principle that in doubtful cases a penal provision ought to be given that interpretation which is least unfavourable to the accused. I would never seek to diminish in any way the importance of that principle within its proper sphere. But it only applies where after full inquiry and consideration one is left in real doubt. It is not enough that the provision is ambiguous in the sense that it is capable of having two meanings. The imprecision of the English language (and, so far as I am aware, of any other language) is such that it is extremely difficult to draft any provision which is not ambiguous in that sense. This section is clearly ambiguous in that sense: the Court of Appeal (Criminal Division) attach one meaning to it, and your Lordships are attaching a different meaning to it. But if, after full consideration, your Lordships are satisfied, as I am, that the latter is the meaning which Parliament must have intended the words to convey, then this principle does not prevent us from giving effect to our conclusions."

24. Furthermore, England does not have a statutory provision similar to section 19 of the Interpretation and General Clauses Ordinance Cap.1, which reads as follows:

"19.     An Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit."

25. It seems to us that this section is all too frequently conveniently ignored. Like all legislation, however, it represents the will of the legislature and, as such, must be given full recognition and effect by the courts.

26. In his work "Statutory Interpretation" the late Professor Rupert Cross said this at page 161:

"     Section 1(j) of the New Zealand Acts Interpretation Act 1924, mentioned in the introduction to this book, is set out in para 33 of the Law Commissions' paper. The subsection reads:

'Every act, and every provision or enactment thereof, shall be deemed remedial, whether its immediate purpose is to direct the doing of anything parliament deems to be for the public good, or to prevent or punish the doing of anything it deems contrary to the public good, and shall accordingly receive such fair, large and liberal construction, and interpretation as will best ensure the attainment of the object of the act and of such provision or enactment according to its true intent, meaning, and spirit.'

It is said that little attention is paid to this provision by the New Zealand courts, and the Commissions think that this may be because exhortations to the courts to adopt 'large and liberal' interpretations beg the question as to what is the real intention of the legislature, which may require in the circumstances either a broad or a narrow construction of language. It does seem, however, that the New Zealand provision has at least had the effect of displacing any special presumption in favour of a strict construction of penal statutes. It is not suggested that this is a reason for enacting a provision in anything like the same words as s.1(j) of the New Zealand Act, but there is something to be said for a provision that penal statutes are subject to the same canons of construction as any other statute, even if the only purpose it would achieve under the modern law is the avoidance of doubt."

27. It is as well to remember that the principle that penal statutes must receive a strict interpretation emanates from England where there is no legislation similar to section 19 of the Interpretation and General Clauses Ordinance or section 1(j) of the New Zealand Acts Interpretation Act.

28. Bearing all that in mind, however, we are satisfied that we would not be justified in interpreting the words of regulation 6 so as to attribute to them the meaning which the magistrate did. We are however satisfied, as was argued by Mr. Hatton in his first submission, that the matter is resolved by the wording of the regulation itself. The verb "to erect" when used in relation to a structure refers to the carrying out of a process that, once completed, cannot be repeated unless, of course, the structure is dismantled and then re-erected. In this sense it is different from the verb "to use". One may repeatedly use a structure, and if it were an offence under regulation 6 to use or to permit the use of a structure on a mariculture raft, then a breach of the regulation would be committed on each and every occasion that the offender used it or permitted its use.

29. In our opinion, confining the words "shall erect or permit to be erected" to the act of erection is entirely consistent with the attainment of the object of the legislation. Once the act of erection is completed, so is the offence.

30. To so interpret these words in no way reduces the efficacy of the legislation. It does not prevent the Director from prosecuting an offender. If the date of alleged offence is unknown thereby making it impossible to state with precision when it was committed, resort may be made to the common practice of framing the charge so as to allege that the offence occurred on or about a certain date or between certain dates. Aside from the application of any statutory period of limitation regarding the commencement of proceedings for an offence, the date of its commission is not material since it is not one of the essential elements of the offence.

31. Moreover, even if he does not wish to prosecute the offender, or, if the offender, having been successfully prosecuted, continues to leave the structure on the raft, the Director has power under paragraph (3) of the regulation to "remove, or cause to be removed, any structure that is erected in contravention of paragraph (1) or any structure that is not in accordance with the permission granted." He may also refuse to renew the offender's licence. We are, therefore, not persuaded that in order best to ensure the object of the regulation according to its true intent, meaning and spirit, it is necessary to extend the natural and ordinary meaning of the words "permit to be erected".

32. We are satisfied that the magistrate erred in convicting the appellant of the offence charged. The appeal is allowed and the conviction set aside. We order that the fine of $500, if paid, be remitted to the appellant.