HKSAR v. TAI SANG CLEANING CO LTD

[English Translation - 英譯本]

HCMA 106/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 106 OF 2007

(ON APPEAL FROM ESCC 16270 OF 2006)

------------------------

-------------------------------------

REASONS FOR JUDGMENT

-------------------------------------

1. The appellant (Tai Sang Cleaning Co. Ltd.) was charged with one count of “failing to comply with a requirement to produce recordsmade by a public officer authorized by the Commissioner in writing under section 72(1)(b) of the Employment Ordinance, Cap. 57”, contrary to sections 63B(1), 63B(3) and 72(1)(b) of the Employment Ordinance, Cap. 57 of the Laws of Hong Kong.  The magistrate convicted the appellant after trial of “failing to comply with the Commissioner’s requirement to produce records” and imposed a fine of HK$30,000 on the appellant.

2. The appellant appealed against conviction. After the hearing, I allowed the appeal and now set out my reasons.

THE PROSECUTION CASE

3. The facts of the case are stated in the magistrate’s Statement of Findings, the relevant parts of which are extracted below :

5. Simply put, the agreed facts show:

(a)     The Labour Department, acting on complaints lodged by the defendant’s employees, carried out investigation with the defendant. On 21 November 2005, Assistant Labour Officer Chow Siu Ling (PW3, hereinafter called ‘Chow’) issued a letter for the Commissioner to the defendant (Exhibit P3 a-c) requiring the defendant to attend an interview on 1 December at the Labour Department, bringing along various records. These records included wage and employment records (‘the records’) that were required to be kept and maintained under section 49A.

(b)      On 25 November 2005, the defendant’s solicitor wrote a reply letter to the Labour Department (Exhibit P4). Thereafter, correspondence between the two sides (Exhibits P5-P9) went back and forth for some time, including a letter from Chow that was faxed to the defendant on 1 December 2005 (Exhibit P7 a-c) reiterating that the defendant was required to produce the records on that day.  Labour Officer Law Wing Lai (PW4, hereinafter called ‘Law’) also issued letters (Exhibit P8 a-c) for the Commissioner to the defendant on 8 and 9 December 2005, requiring the defendant to go to the Labour Department on 19 December 2005 to produce the records.

(c)      The defendant has no previous convictions for offences under the Employment Ordinance.

6.            PW1 and PW2 were employees who lodged their complaints against the defendant with the Labour Department. Their evidence has no relevance to the issues in this case.

7.            In brief, both Chow and Law said they were authorized to implement section 72(1) by the Acting Commissioner under the ‘Departmental Permanent Directions No. 87 (2005 Amendment)’ (hereinafter called ‘the authorization’; Exhibit P12a). Law also said that the defendant did not produce its records as required by Exhibit P8 on or after 19 December 2005. Under cross-examination, both Chow and Law admitted that the authorization was not mentioned in the letter nor was a copy of it attached to the letter. They also admitted that the authorization was not a public document and that it was not stated in the letter that they had been authorized by the Commissioner for Labour to implement section 72(1). However, they both said that the letter was issued in the name of the Commissioner and that they were only signing for the Commissioner for Labour.

THE DEFENCE CASE

4. The appellant elected not to give evidence or call any witness.

THE LEGAL ISSUES

5. Since the offence that the appellant faced was one of “failing to comply with a requirement to produce records, which was made by a public officer authorized by the Commissioner in writing”, defence counsel submitted that under section 72(1), other than the Commissioner himself, any person implementing the section must be authorized by the Commissioner in writing and must produce the authorization.  In this case, the letters in question were not signed by the Commissioner butby Law Wing Lai and Chow Siu Ling.  By failing to produce the authorization, they acted in violation of section 72(1).

THE MAGISTRATE’S RULING

6. The magistrate made the following ruling:

10.          Section 72(1) authorizes the Commissioner or a public officer authorized by the Commissioner to require an employer to produce records that are required to be kept and maintained by virtue of section 49A. Obviously, the Commissioner [does not] need an authorization when making a requirement, not to mention having to produce an authorization. All the letters issued to the defendant by the Labour Department were issued by the Commissioner [but] were signed by Chow and Law for the Commissioner under his authority (Exhibit P12a).  Under these circumstances, I hold that the authorization was not required to be attached to the letters. Accordingly, I reject the defence and find the defendant guilty as charged.

GROUNDS OF APPEAL

7. Mr Ching for the appellant has put forward four grounds of appeal.  I only need to deal with two of them.

Ground One:  The magistrate committed a material error by convicting the defendant of a charge which was at variance with the charge stated in the summons

8. Mr Ching pointed out that the charge stated in the summons clearly alleged that the appellant failed to comply with a requirement to produce records, which was made by a public officer authorized by the Commissioner.  The summons did not allege that the appellant failed to comply with a requirement made by the Commissioner.  According to the “Conviction for fine, and, in default of payment, imprisonment” signed by the magistrate, the appellant was convicted of “failing to comply with the Commissioner’s requirement to produce records”.  It was very unfair to the appellant that the appellant was convicted of an offence with which it had not been charged.

9. Mr Ching argued that the magistrate had concluded that the requirement in question was also made by the Commissioner, and that the Commissioner did not need an authorization when making a requirement, let alone produce the authorization.  The summons had never been amended before the defendant was convicted.

10. A magistrate is entitled to amend the charge in question by virtue of section 27 of the Magistrates Ordinance.  Nevertheless, the prosecution did not make an application to amend the charge, nor did the magistrate amend the charge in question “on his/her own initiative”.  Mr Ching contended that the conviction was at variance with the charge as stated in the summons.

Ground Two:  The magistrate misconceived or misinterpreted section 72(1)(b) of the Employment Ordinance

11. Mr Ching submitted that the magistrate erred in ruling that the “the Commissioner” referred to in section 72(1)(b) include Law and Chow, or that Law and Chow could represent the Commissioner in making the requirements that the Commissioner was entitled to make without any written authorization or authorization document, or to sign letters for the Commissioner to make the requirements that the Commissioner was entitled to make.

12. Mr Ching submitted that under section 2 of the Employment Ordinance, “Commissioner” means the Commissioner for Labour and includes a Deputy Commissioner for Labour and an Assistant Commissioner for Labour (but excludes officers of the same rank as Law or Chow).  On the other hand, under section 3 of the Interpretation and General Clauses Ordinance, “public officer” means any person holding an office of emolument under the Government, whether such office be permanent or temporary (i.e., includes Law and Chow).

13. Mr Ching argued that if Law or Chow needed to exercise the powers under section 72(1) of the Employment Ordinance, they must act in the capacity of an authorized person who had been authorized by the Commissioner in writing, but could not act in the capacity of the Commissioner; and that they ought to produce the authorization before making the relevant requirements.

14. Mr Ching relied on section 4A of the Employment Ordinance:

The Commissioner may in writing authorize any public officer or class of public officer to exercise or perform any or all of the powers, functions or duties conferred or imposed on the Commissioner under this Ordinance.

as well as the authorization document, “Departmental Permanent Directions No. 87 (2005 Amendment)” (Exhibit P12a), which was produced when Law and Chow gave evidence.  The latter document clearly showed that Mr Fred Ting, Acting Commissioner for Labour, gave an authorization in writing under section 4A of the Employment Ordinance to staff members of various ranks (including Law and Chow’s ranks) in the Labour Department in relation to section 72(1) as well as other provisions of the Employment Ordinance.

15. Mr Ching submitted that the above clearly showed that other than the Commissioner, a Deputy Commissioner or an Assistant Commissioner acting in person, any other person (including staff members of the Labour Department) can only exercise the powers conferred by section 72(1) of the Employment Ordinance in the capacity of an authorized person but not in the capacity of the Commissioner, a Deputy Commissioner or an Assistant Commissioner.

16. Mr Ching argued that if the magistrate’s understanding were correct, there would have been no need for section 4A of the Employment Ordinance, and it would not have been necessary for the Commissioner for Labour to delegate his powers in writing in the form of “Departmental Permanent Directions No. 87 (2005 Amendment)”.

17. Mr Ching said it was not disputed that both Law and Chow had not produced the relevant written authorization to the appellant, hence the conviction was unsafe and unsatisfactory.

THE RESPONDENT’S RESPONSE

18. Ms Lily Ho, Senior Government Counsel for the respondent, made the following submissions in response.

RESPONSE TO GROUND ONE

19. Ms Ho submitted that the charge of which the magistrate convicted the appellant was not inconsistent with the charge in the summons.  She submitted that the magistrate had not erred.

20. Ms Ho submitted that all the letters that had been issued to the appellant by the Labour Department were issued by the Commissioner but signed by Chow and Law under the authority of the Commissioner.  For this reason, the appellant may be said to have failed to comply with the requirements made by Chow and Law.  Furthermore, since the letters were signed and issued by Chow and Law for the Commissioner, it was as if the letters were issued by the Commissioner.  In the circumstances, an authorization did not have to be attached to the letters.

RESPONSE TO GROUND TWO

21. Ms Ho submitted that the magistrate had neither misconceived nor misinterpreted section 72(1)(b) of the Employment Ordinance.  She argued that the magistrate’s understanding was that section 72(1) of the Employment Ordinance conferred upon the Commissioner, or a public officer authorized by the Commissioner, a power to require an employer to produce records that were required to be kept and maintained by section 49A.  When the requirement was made by the Commissioner, an authorization obviously was not necessary, let alone the production of such an authorization.  Ms Ho submitted that the magistrate’s interpretation of the relevant statutory provisions was reasonable and proper.

22. Ms Ho cited the relevant Hansard of the Legislative Council and contended that the objective of section 72 was to authorize some Labour Inspectors or Officers to enter certain places of employment for inspection.  While it was very reasonable for Labour Inspectors or Officers to be required to produce an authorization given the fact that they needed to “gain entry” to the premises for inspection purposes, she argued that Chow and Law in this case were making the requirements under section 49A by letter, and were not entering premises or locations of employment.  The “production of an authorization” was therefore not applicable to this case at all.

Judgment

23. Section 72(1)(b) of the Employment Ordinance, Cap. 57 provides:

(1)          The Commissioner, or any public officer authorized by the Commissioner in writing for the purpose and on production of that authority, may –

…

(b)      require the production of any register, record, form or other document required to be kept under this Ordinance and inspect, examine and copy the same;

…

24. The statute makes it clear at the outset that the relevant requirement may be made under two scenarios:

(1)     the requirement is made by the Commissioner; or

(2)     the requirement is madeby a person authorized by the Commissioner in writing for the purpose and on production of that authority.

25. The prosecution’s case had always been that the two Labour Department officers were authorized persons.  Accordingly, the appellant was charged with the offence of “failing to comply with a requirement made by a person authorized by the Commissioner”.  The position of the appellant had all along been that the officers in question had never produced the relevant authorization in accordance with the Ordinance.  In the circumstances, when the magistrate held that the facts and the evidence showed that the two Labour Department officers were signing for the Commissioner and that they were not authorized persons, the entire basis on which this case rested upon shifted.  The magistrate ought to have amended the charge in accordance with the procedures set out in section 27 of the Magistrates Ordinance so that the appellant had the opportunity to respond in defence.

26. If a case involved shop theft and the defendant was charged with theft of certain items, and the evidence showed that the standard of proof was not met for one of the items listed in the particulars of offence to prove that the defendant committed the offence, the magistrate need not amend the charge.  However, this case is quite different and it would be unfair to convict the appellant of “failing to comply with the Commissioner’s requirement to produce records”, without amending the charge.

27. In my judgment, on this ground alone, the appeal should be allowed.

GROUND TWO

28. I entirely agree with Mr Ching’s submission.  I do not accept the reasoning behind the magistrate’s ruling.  While the two Labour Department officers were signing for the Commissioner, they were not the Commissioner and their capacity would not have changed to that of the Commissioner as a result of their signing for the Commissioner.

29. I can understand the legislative intent of the Ordinance in question as pointed out by Ms Ho.  Nevertheless, in my judgment, if a person could face prosecution due to his failure to comply with an Ordinance, one must be cautious in interpreting the relevant Ordinance.  The Ordinance in question does not state that the production of an authorization is only necessary when a Labour Department officer enters a place of employment for inspection and that it is not necessary to do so when the Labour Department issues a letter.  The Ordinance makes it clear that when the Commissioner does not make the relevant requirement himself, a person authorized by the Commissioner may only make the requirement on production of the relevant authorization.

30. Although the letters were issued by the Labour Department with the letterhead of the Labour Department on them, any person could have claimed that he or she was signing for the Commissioner.  Outsiders (especially those who are required to produce records) have no way whatsoever of knowing whether or not that person has indeed been duly authorized.  In order to ensure that a person to whom a requirement is made knows that the officer claiming to have been authorized by the Commissioner indeed has that authority, and that that person will be held legally liable if he or she fails to comply with such a requirement made by the officer so authorized, that officer from the Labour Department must produce the relevant authorization.

31. In case the Labour Department encounters difficulties in implementing the production of an authorization when a requirement is made through correspondence, the Commissioner may consider amending the Ordinance so as to limit the application of the production requirement to “outdoor duties” carried out by Labour Department officers.

CONCLUSION

32. The appeal must be allowed accordingly.