HKSAR v. THE INCORPORATED OWNERS OF NO.10 BONHAM STRAND AND ANOTHER

HCMA64/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.64 OF 2003

(ON APPEAL FROM WSS 13870 & 13871 OF 2002)

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

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

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

J U D G M E N T

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

1. The 1st appellant, the Incorporated Owners of No.10 Bonham Strand, was summonsed for the following offence :

" On 17 April 2002 being the owner of Common areas of the specified commercial building at No.10 Bonham Strand, Hong Kong without reasonable excuse did fail to comply with the fire safety improvement direction dated 22.6.2001, the non-compliance being mere particularly described as items as specified in the attached CB/101a Fire Service Installations and Equipment Requirements for Common Areas of Specified Commercial Buildings"

2. The 2nd appellant, Mee Koon Imitation Jewellery Company Limited, was summonsed, as owners for particular floors, for a similar offence, as follows :

"... on 17 April 2002 being the owner of G/F, M/F, 1/F, 3/F, 5/F including Roof of the specified commercial building at No. 10 Bonham Strand, Hong Kong without reasonable excuse did fail to comply with the fire safety improvement direction dated 22.6.2001, the non-compliance being more particularly described as items as specified in the attached CB/101b Fire Service Installations and Equipment Requirements for non-common areas of Specified Commercial Buildings."

3. The two appellants pleaded not guilty to the summonses, but the learned magistrate found the offences proved after the trial and imposed orders of fine on the appellants. They now sought to appeal against both convictions and sentences. At the appeal hearing, the appellants were represented by one Mr Choy Bing Wing. He was also the representative of the appellants at the trial.

4. This case was not the usual types of offences that came before the Magistracy. The summonses were concerned with certain directions issued by the Fire Department under the Fire Safety (Commercial Premises) Ordinance, Cap.502 ("the Ordinance"). Briefly, what had taken place was that after making inspection of the premises in question, the station officer of the Fire Service Department came to the conclusion that the fire service installations and equipment of the building required improvement. The officer therefore prepared the Fire Safety Improvement Directions ("the Directions"), which were then signed by his superior and issued to the two appellants.

5. As the subsequent visits of the premises revealed that there was no satisfactory compliance of the Directions, the department took out the summonses against the appellants. However, the defence took the view, inter alia, that, because the largest floor area of the building did not exceed 230 sq.m. there was no need for the installation of any sprinklers as required. Mr Choy had also challenged the plan submitted by the prosecution, disputed the meaning and interpretation of "specified commercial building" and queried whether the directions were issued fairly by the department.

6. Apart from the brief statement in the Notice of Appeal (Form 101), details of the appellants' complaints regarding the conviction were stated contained in three letters. In the letter to the Western Magistracy dated 15 January 2003, it was stated, inter alia, that :

" The substantial grounds of our appeal are that the trial magistrate had preadjudicated the matter before hearing Defence expert evidence by saying that such evidence would be useless but no harm to hear the same and that the evidence of PW1 gave rise to factual dispute over a crucial point of law which had to be compared with the Defence expert evidence so as to settle the factual dispute and to rule on such a crucial point of law but the trial magistrate turned blind eye to such evidence and the crucial point of law."

7. On 24 January 2003, the appellants wrote to the clerk to the trial magistrate and stated the following :

"The substantial grounds of our appeal are that the trial Magistrate preadjudicated the matter before hearing defence expert evidence by saying that such evidence would be useless but no harm to hear the same and that the evidence of PW1 gave rise to factual dispute over a crucial point of law which had to be compared with the Defence expert evidence so as to settle the factual dispute and to rule on such a crucial point of law but the trial magistrate turned a blind eye to such evidence and the crucial point of law. Now with such and incomplete transcript omitting such vital evidence of PW1 and Defence expert evidence, there was no way and no point for our appeal to be conducted at all."

8. In relation to the fines, the appellants wrote to the Principal Magistrate of Western Magistracy on 15 January 2003 and made the following comments :

" We inform you that the purported convictions and purported sentences are grossly improper and oppressive amounting to a product of cheating clearly against the evidence of PW1 and the Defendant's expert evidence, a point which could tear the Prosecution but completely untouched by the trial magistrate. To convict without (deliberately) addressing it was clear dishonesty.

According to authorities such fines from such behaviour can be ignored Appeal to quash it has been lodged."

9. From the contents of these letters, one could summarize that the appellants' complaints were principally that the learned magistrate had shown bias against the defence and had failed to consider their case properly. Regarding the transcript, Mr Choy had made several unsuccessful applications to the masters in order to obtain the relevant parts of the transcript of the trial. His application was eventually granted by Deputy Judge McMahon on 2 April 2003 when the learned judge had to adjourn the hearing of the appeal. Now included in the appeals bundle was the transcript of PW1, the station officer, who had made the initial inspection, and the record of the testimony of Mr Choy, who had given evidence on behalf of the defence.

10. The respondent supported the conviction and submitted that none of the grounds of appeal advanced by Mr Choy was meritorious. In his very thorough written submission, Mr Raymond Cheng had ably summarized and dealt with the facts of the case, the issues raised at the trial and the criticisms advanced by Mr Choy. Mr Cheng argued that the learned magistrate had properly directed himself on the law, and reminded himself of the burden and standard of proof. He submitted that there was nothing unsafe or unsatisfactory about the convictions.

11. In a succinctly written Statement of Findings, the learned magistrate had explained the basis of the convictions. He had adequately summarized the prosecution and defence evidence and had correctly reminded himself of the burden and onus of proof. He dealt with the point about the "specified commercial building" in the following way :

"9. The prosecution did produce to his court certified true copy of building plans of this building. Although it's clear that these plans were submitted to the Fire Services Department for perusal on or before 23 Aug. 1971, it's not clear if these plans were the same plans submitted to the Building Authority for approval. However, this court is prepared to draw the irresistible inference that had there been building plans submitted to Fire Services Department for approval, there certainly would also be building plans submitted to Building Authority for approval.

10. In any event, this building was completed in around the year 1973 and occupation permit been issued on 22.4.1975, therefore, it falls within para. (b) of Schedule 4 even if there was no building plans being submitted to Building Authority for approval. Therefore, S.5(1A) of CAP502 applies and the Directions were properly served."

12. Regarding the Directions, the magistrate disagreed with the claim that they were issued by a wrongful exercise of discretion on the part of the department. He said that there was no evidence to support such an allegation. The magistrate also took the view that there was no reason at all for either of the two appellants not to comply with the Directions and he therefore found both appellants guilty.

13. The Fire Safety (Commercial Premises) Ordinance deals with fire safety improvements to be made in certain commercial premises and commercial buildings. It applies to commercial building and more specifically "prescribed commercial premises" and "specified commercial building." The Ordinance has provided specific definitions for these 2 types of places. The present summonses were issued against the premises as "specified commercial building" which is defined in the Ordinance as any commercial building specified in Schedule 4 and includes a unit or part thereof. Schedule 4 refers to the submission date of the plans of the building works and the construction date of the building. There is no reference to the concept of floor area, unlike the meaning of "prescribed commercial premises", which relies on the threshold of 230 sq.m. (See subsection (2) of the definition section in the Ordinance.) At the trial, Mr Choy seemed to have argued strongly that the matter of 230 sq.m. was a relevant consideration whereas the prosecution and the learned magistrate took a different view. It might perhaps have been confusing when the business of jewellery was one of the commercial activities covered in Schedule 1 under "prescribed commercial premises." And the 2nd appellant happened to be a jewellary company. How this matter would affect the applicability of the different sections should be a matter for the trial magistrate to discern and resolve.

14. Unfortunately, the learned magistrate had not taken the opportunity to clarify the relevant matters. The transcript actually showed that he had descended into the arena and had failed to conduct the trial in the proper manner by his excessive interference.

15. There are about 38 pages of transcript that covered the evidence of PW1. The first three pages contained the evidence-in-chief during which the trial magistrate had not said much. The last few pages recorded the re-examination. But for the cross-examination, apart from the few questions and answers that had taken place between the witness and the cross-examiner Mr Choy, the rest became essentially a dialogue/argument between the bench and Mr Choy. The trial magistrate had kept asking Mr Choy to clarify his defence and there was a recurrent debate about the relevance of the building plan. At one stage, the trial magistrate even asked : "where is the evidence that your building, the total area of your building is less than 230 sq.m.? Where is the evidence? The evidence you show me is quite the contrary...". And that was in the course of the cross-examination of the first prosecution witness. There were, indeed, numerous such unnecessary exchanges between the bench and Mr Choy which should not have taken place during that stage of the trial.

16. The transcript showed that the same had taken place when Mr Choy was in the witness box. That part of the trial soon turned into a session of debate between the bench and the witness. The further complication was that Mr Choy had purported to give evidence as an expert, but it seemed that the leaned magistrate had failed to make any ruling on such a matter.

17. The magistrate might have thought that the appellants had no valid defence whatsoever, and he might be agitated because Mr. Choy could not answered his queries effectively. But Mr. Choy is not a lawyer and the magistrate should have allowed the defence present its case. He could, of course, at the right time, try to ascertain the line taken by the defence so that he could have a better control of the proceedings and make the necessary rulings. But what the learned magistrate had done in this case had exceeded what was appropriate and any it would appear to any reasonable observer that the magistrate had already made up his mind at the very early stage of the trial.

18. In these circumstances, I would have to allow the appeal, and set aside the sentences. However, in view of the potentially important nature of the case, I consider it appropriate to make an order under section 119(1)(d) of the Magistrates Ordinance to remit the case to the magistracy for a trial de novo by a different magistrate.

19. I advise the appellants to obtain legal advice as to whether Mr. Choy should still represent them at the coming trial if he intends to give evidence as a witness. They should also consider instructing counsel or solicitor to represent them at the trial on this important matter so that the trial magistrate may be better and more effectively assisted.