HKSAR v. THE GARDEN CO., LTD.

HCMA214/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.214 OF 1998

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R E A S O N S

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1. The Appellant Company was convicted by Mr David Dufton on 17th December 1997 of an offence under s.s.52(1) and 70(3) of the Public Health and Municipal Services Ordinance, Cap.132, namely, that on 5th February 1997, it sold a bag of 'Garden' soft sandwich bread which was not of the substance demanded by the purchaser in that the food had the attributes described in the charge, namely, that it contained animal droppings and the Urban Council was reasonably satisfied that the offence was committed due to the act or default of the Appellant Company. The Appellant Company was fined by the learned Magistrate $1,000.

2. The Appellant appealed against the conviction and the sole ground of appeal was that there was a material irregularity in that the learned Magistrate failed to consider the defence available to the Appellant pursuant to s.53(3) of the aforementioned Ordinance.

3. The appeal was heard by me on 23rd June 1998, and after hearing submissions from Counsel, I allowed the appeal and quashed the conviction and ordered a re-trial. I indicated that I would give my reasons later which I now do.

4. At the trial, the prosecution called four witnesses and the Appellant called two. Section 52(1) of the Ordinance says :-

"If any person sells to the prejudice of a purchaser any food or drug which is not of the nature, or not of the substance, or not of the quality, of the food or drug demanded by the purchaser, he shall, subject to the provisions of section 53, be guilty of an offence."

5. Section 53 has the title "Defences available in proceedings under Section 52". Sub-section (1) of s.53 starts off with the words :-

"In any proceedings under section 52 for an offence consisting of the sale of food to which any substance has been added, or in the preparation of which any substance has been used as an ingredient, or from which any constituent has been abstracted, or which has been subjected to any other process or treatment, other than food thereby rendered injurious to health, it shall be a defence ...."

Sub-section (2) mentions the offences to which the provisions of sub-section (1) shall apply. Sub-section (3) says :-

"In proceedings under section 52 in respect of any food or drug containing some extraneous matter, it shall be a defence for the defendant to prove that the presence of that matter was an unavoidable consequence of the process of collection or preparation."

Quite clearly, in respect of the offence that the Appellant was convicted of, the defence specified in sub-section (1) would have no application. The defence specified in sub-section (3) would be the only defence which could be available to the Appellant.

6. At the close of the case for the defence, Counsel for the Defendant, who was not Mr Callaghan who appeared before me, said the following to the learned Magistrate (transcript p.69) :-

"But the point is this, s.52, when read together with the defences under s.53, does seem to me, Sir, to be aimed at more particularly the manufacturer of the process. He's either put in something which shouldn't be there or left out something which should be there. And the defence, it seemed to me, if you do that then provided the net result is not injurious to health, and provided you label it accordingly, then it shall be a defence."

Counsel then went on :-

"What we are saying is that we are charged under s.52 and thereby, as a result of, if you like, the statutory defence, clearly we cannot avail ourselves of the statutory defence because these animal droppings assuming that they are rat's ...."

The learned Magistrate then asked "Which statutory defence?" and Counsel said :-

"Under s.53, it's not available to us."

The Court then said :-

"Because it doesn't apply to this situation?"

Counsel said :-

"It does not apply."

"That's what I am saying. And if one looks at sub-section 3, again there is a statutory defence to say that it is an unavoidable consequence of a process of collection or preparation. And again, we can't avail ourselves of that."

There then followed an address by Counsel on the "reasonable diligence test", after which Counsel addressed the Court on the evidence in the case. At the end of Counsel's address, the learned Magistrate said :-

"I don't know if any of the parties have any authorities with regard to this particular section or sections that may be of assistance to the Court."

Counsel in his final address did not refer the Court to any authorities, either local or overseas. In reply to the Court's comment, Counsel said "Specifically on this section, we have no authorities to hand up."

7. As I said in the preceding paragraph, the defence under s.53(3) might be applicable to the present case. Counsel for the Respondent at the appeal quoted to me the case of Smedleys Ltd v Breed [1974] 2 All ER 21 to support his submission that the defence under s.53(3) could have had no application to this particular case, and so it did not matter that the defence was not considered by the learned Magistrate. In that case, the House of Lords was dealing with the Foods and Drugs Act 1955, but the provisions of that Act insofar as the offence under our s.52 and the defence under our s.53(3) are exactly the same as the provisions in the Hong Kong Ordinance. In the case of Smedleys, it was held :-

(i) In order to establish a defence under s3(3) (the Hong Kong s.53(3)) it was necessary to show that the presence of the extraneous matter was a consequence of the process of collection or preparation of the food and that that consequence could not have been avoided by any human agency; it was not sufficient for the defendants to show that he had taken all reasonable care to avoid the presence of the extraneous matter. Accordingly, even if it were accepted that the presence of the caterpillar was a consequence of the process of collection or preparation rather than something which had occurred despite those processes, the defendants were not entitled to rely on s3(3) since the caterpillar could have been removed from the peas during the process of collection or preparation and its presence could thereby have been avoided.

(ii) Even if it were possible to establish a defence under s3(3) by showing that the presence of the extraneous matter was unavoidable by the exercise of reasonable care, it would be necessary for the defendants to show that, not only they themselves, but everybody engaged in the processes of collection and preparation had exercised reasonable care to avoid the presence of the extraneous matter, and that the defendants had failed to do so."

8. The hearing before the learned Magistrate had concluded on 21st November 1997 and the Magistrate reserved judgment till 17th December 1997. On 17th December, the learned Magistrate gave short reasons for his verdict but nowhere in those reasons did he mention that he had considered and rejected the defence under s.53(3). The learned Magistrate made certain findings of fact after which he said :-

"I am satisfied on the evidence that the only inference to draw is that the presence of the animal droppings in the bread was due to the act or default of the Defendant company."

The phrase "act or default of the Defendant company" was probably mentioned by the learned Magistrate because in the summons charging the Defendant, that phrase is mentioned. In addition, s.70(3) of the Ordinance is also mentioned. Section 70(3) simply says that where it appears to the authority that an offence has been committed in respect of which proceedings might be taken against some person, and the authority is reasonably satisfied that the offence was due to an act or default of some other person and that the first mentioned person could establish a defence under s.70(1), then the authority may cause proceedings to be taken against that other person without first causing proceedings to be taken against the first mentioned person, and in any such proceedings, the defendant may be charged with, and be convicted of the offence with which the first mentioned person might have been charged. The defence under s.70(1) is that a person against whom proceedings are brought, shall, upon information duly laid by him and on giving the prosecution not less than three clear days' notice of his intention, be entitled to have any person to whose act or default he alleges that the contravention of the proceedings in question was due, brought before the Court in the proceedings and if after the contravention has been proved, the original defendant proves that the contravention was due to the act or default of that other person, that other person may be convicted of the offence. And if the original defendant further proves that he has used all due diligence to secure that the provisions in question were complied with, he shall be acquitted of the offence.

9. What has happened in this particular case is that the piece of bread had been sold in the Wellcome Supermarket, but the Wellcome Supermarket was not prosecuted and the only defendant prosecuted was the Appellant. Therefore, it was necessary for the prosecution to mention s.70(3) to say that they were alleging that the offence was committed due to the act or default of the Appellant.

10. In the Statement of Findings, the learned Magistrate went through the evidence adduced by the prosecution and he then mentioned the two witnesses called by the defence. In relation to the two defence witnesses, he said :-

"DW1 testified as to the procedure involved in producing a loaf of bread which was the subject of the complaint. This included all checks made to ensure that animal droppings did not get into the bread. Further, that the appellant employed the services of Rentokil who reported that there were no rats found between December 1996 and February 1997. DW1 also testified that the appellant, to his knowledge, had never been convicted of any similar or hygiene related offence. In cross-examination DW1 agreed visual inspection was not 100% reliable.

DW2 testified that exhibit P1 was more likely rat's dropping. During the period December 1996 to February/March 1997 Rentokil had inspected the appellant's bakery at Sham Tseng for cockroaches, mosquitoes, rodents, rats, mice etc. and that during that period they had found no traces of rats. Further, that over the years Rentokil had provided to the appellant the maximum services they offered. DW2 agreed in cross-examination that even if their company reported no rat infestation it was possible a single rat could come into the plant undetected by their staff."

The learned Magistrate then continued :-

"I carefully considered all the evidence in the case. I was satisfied so I was sure the prosecution witnesses were witnesses of truth. Nothing the defence witnesses said, the submissions of Mr. Delaney or the cross-examination of the prosecution witnesses caused me to doubt the prosecution witnesses' evidence. I accepted the prosecution witnesses' evidence. I also accepted the evidence of DW1 and DW2."

Further on, in his Statement of Findings, the learned Magistrate says :-

"I was satisfied, applying the test laid down in Gammon (Hong Kong) Limited v Attorney General [1985] A.C. 1 that offences contrary to sections 52 and 70(3) were offences of strict liability subject to the specific defences set out in sections 53 and 70(1)."

The learned Magistrate then said :-

"I was satisfied on the evidence that the only inference to draw was that the presence of the animal droppings in the bread was due to the act or default of the appellant. In my view it was, on the evidence, fanciful to suggest after delivery to Stanley Wellcome Supermarket, that somehow the tag became detached, a rat went inside the bag to do its droppings and that the tag was put back on without anyone noticing anything wrong. I was further satisfied, on the evidence, it was fanciful to suggest someone had deliberately placed the rat droppings in the bag containing the bread. In reaching these findings I carefully considered the evidence of the defence witnesses as to the inspection procedure and measures taken to avoid rodent infestation. Nothing in what the defence witnesses said or the submissions made by Mr. Delaney left me to doubt that the only inference to draw was that the presence of the animal droppings in the bread was due to the act or default of the appellant."

11. It is therefore clear that neither when the learned Magistrate gave his reasons in open Court nor in his Statement of Findings, did the Magistrate ever consider the defence contained in s.53(3). It may well be that unfortunately he was inadvertently misled by the defence who had said that the defence had no application to the present case and that the Appellant Company was not relying upon that defence. According to Smedleys (supra) it is arguable that the defence could have no application to the facts of this case. However, it was also held by the House of Lords that if the defence were established, it would be necessary for the defendants to show that not only they themselves, but everybody engaged in the processes of collection and preparation, had exercised reasonable care to avoid the presence of the extraneous matter, and that the Defendants had failed to avoid the presence of such matter. Whether the Appellant could have succeeded in establishing this defence by the evidence they called was a matter which required the learned Magistrate to consider the evidence and apply it to what the House of Lords in Smedleys said. The case was never quoted to the learned Magistrate and the learned Magistrate never mentioned it anywhere in his reasons for verdict or Statement of Findings.

12. It is not for me to look at the defence evidence and decide whether the defence could be relied upon by the Appellant, or whether the Appellant has succeeded in establishing such a defence; that is a matter for the trial court to determine. It was in the circumstances set out above that Mr Callaghan for the Appellant submitted that there was a material irregularity. I agreed with him and it is for the reason mentioned that I allowed the appeal and ordered a re-trial.

13. Mr Callaghan submitted, and I agreed with him, that the learned Magistrate, having accepted the defence evidence, should have considered the facts established by that evidence and weigh them in the light of the statutory defence and not in the light of the prosecution's case.