HKSAR v. SEVEN STARTS CHEMICAL PRODUCTS LTD.

HCMA 651/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 651 OF 2002

(ON APPEAL FROM MAGISTRACY SUMMONS NOS. 15933,
15934, 15935, 15936, 15937, 15938, 15939 & 15940/2001)

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J U D G M E N T

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1. The appellant was convicted after trial before a magistrate on 8 summonses for the supply of pillows to a number of shops which did not comply with the general safety requirement for consumer goods. Fines of various amount in respect of each summons were imposed by the magistrate. The appellant appeals against both conviction and sentence.

2. The facts were simple and not in dispute. The only issue before the magistrate was whether or not the pillows in question complied with the general safety requirement. The appellant is and was at the material times a limited company incorporated under the Companies Ordinance, Cap. 32. It carries on the business of a manufacturer of foam and garment accessories. In 2000, the appellant purchased a quantity of mattresses, pillows and sponges from Smarter Hong Kong Ltd for $1,898,000.00. The pillows were sold to local retailers between July and November 2000. Subsequently customs officers raided the various shops and seized the number of pillows as specified in the summonses. The pillows were later sent to the Government Chemist for testing and found to fail to comply with the general safety requirement for consumer goods. The summonses against the appellant were issued on 15 November 2001. The trial commenced before the magistrate on 21 May 2002 and concluded on 23 May 2002 when the magistrate convicted the appellant.

3. A total of 4 grounds of appeal were advanced and argued by Mr Surman on behalf of the appellant. The first ground being:

"The magistrate erred in entering conviction on all the summonses as the flammability or ignitability test adopted and used by the prosecution expert and accepted by the court as being the appropriate standard was:

(a) not a standard adopted by the Secretary for Economic Services under section 5, Cap. 456;

(b) not a standard internationally accepted as being representative of the general safety requirements applicable to this particular product, namely pillows;

(c) too high a standard; and

(d) not a standard which has been subsequently (subsequent to the hearing of this case), adopted by the Customs & Exercise Department."

4. Ground 1(a) is misconceived. The summonses were laid under section 6(a)(i) of the Consumer Goods Safety Ordinance which provides:

"A person shall not supply consumer goods unless the consumer goods comply with the general safety requirement for consumer goods."

5. "General safety requirement" is defined in the Ordinance as meaning a duty to ensure that consumer goods are reasonably safe having regard to all the circumstances, including those set out in section 4. Section 4 says:-

"(1) The general safety requirement for consumer goods is that the consumer goods are reasonably safe having regard to all of the circumstance including-

(a) the manner in which, and the purpose for which, the consumer goods are presented, promoted or marketed;

(b) the use of any mark in relation to the consumer goods are instructions or warnings given for the keeping, use or consumption of the consumer goods;

(c) reasonable safety standards published by a standards institute or similar body for consumer goods of the description which applies to the consumer goods or for matters relating to consumer goods of that description; and

(d) the existence of any reasonable means (taking into account the cost, likelihood and extent of any improvement) to make the consumer goods safer.

(2) Where an approved standard applies to consumer goods, the consumer goods shall be taken as complying with the general safety requirement if they comply with the approved standard."

6. Section 5 only applies where a prosecution is brought under section 6(b)(ii) which says:

"Where an approved standard applies to consumer goods, the approved standard for the particular consumer goods."

This is what section 5 provides:-

"The Secretary may by regulation approve a safety standard or safety specification applicable to consumer goods or a class of consumer goods."

7. Section 5 is relevant only if a prosecution is brought under 6(b)(ii) and in that case section 4(2) will also apply. Up to now, the Secretary for Economic Services has not made any regulation with regard to safety standard or safety specification applicable to consumer goods or a class of consumer goods.

8. Dr Lam Hon-kong, a Government Chemist, gave evidence for the prosecution as an expert witness and his evidence was accepted as such. According to him, the safety standard adopted and used in Hong Kong in respect of pillows were the safety standards published by standards institutes and these were ISO12952, BSENISO12952 and BS7175. A pillow only passed the test when it passed both the smouldering test and the open flame test. Burning cigarette would be used as the ignition source in the former test and small open flame powered by flammable gas such as propane or butane would be used as the ignition source for the latter test. Dr Lam tested the samples of pillows specified in the summonses under the open flame test and found all of them failed this test. Therefore he concluded that the pillows he tested had not met the safety standard. It follows that Ground 1(c) also has no merit because the safety standard enforced at the time followed international safety standards published in standards institutes as authorized in section 4(1)(c). Ground 1(d) is also misconceived. It was pointed out and accepted in the course of argument that the circular issued by the Customs and Excise Department on 6 August 2002 had no retrospective effect and the circular was admitted because it was thought that there might be some relevancy on the question of sentence. I will revert to this circular when I deal with the appeal against sentence.

9. There is no substance in any of the complaints in Ground 1 and it must fail.

10. Ground 2 are in these terms:-

"The learned magistrate erred in her assessment of the evidence of the defence witness, Mr Wu in so far as she:

(a) was in error in ruling that he (Mr Wu) was not capable of giving expert opinion evidence given his background and experience in the particular field in question,

(b) having ruled that his (Mr Wu's) evidence was inadmissible, the learned magistrate was in error in subsequently referring to and passing comment on his substantive evidence: (i) inaccurately (ii) in apparent support of the prosecution case and (iii) to the apparent detriment of the defence case."

11. The magistrate's decision not to accept Mr Wu as an expert witness was based on facts. She heard evidence from Mr Wu as to his academic qualifications and experience in the field of testing pillows and made full and careful evaluation of that evidence. She found that Mr Wu had some knowledge and experience in the procedure of testing pillows but that was not sufficient to qualify him as an expert witness. In my view, these were findings of fact which an appellate tribunal would be slow to interfere, unless in exceptional circumstances. Given the fact that Mr Wu had close connection with and personal interest in the appellant company, even if he was allowed to given evidence as an expert, the weight to be attached to his evidence would be minimal. Having rejected Mr Wu to give evidence as an expert, the magistrate nevertheless permitted Mr Wu to continue with his evidence as a non-expert witness and I can see nothing wrong with that. Since Mr Wu had given evidence, the magistrate was entitled to deal with that evidence in the way that she considered proper. This ground must also fail.

12. Ground 3 complains that the magistrate erred in her assessment of the available statutory defences under sections 22 and 24. First, we will look at section 22(1) & (2) and section 24 and then turn to the magistrate's decision to see how she dealt with them. This is what the two sections say:

"22. General offences

(1) A person who contravenes section 6 commits an offence.

(2) In proceedings against a person for an offence for contravening section 6(i) it shall be a defence for that person to show-

(a) that he reasonably believed that the consumer goods would not be used or consumed in Hong Kong;

(b) that-

(i) he supplied the consumer goods in the course of carrying on a retail business; and

(ii) at the time he supplied the consumer goods, he neither knew nor had reasonable grounds for believing that the consumer goods failed to comply with the general safety requirement; or

(c) that the terms on which he sold the consumer goods indicated that the consumer goods were not being supplied as new goods.

24. Defence of due diligence

(1) In any proceedings against a person for an offence under section 22 or a regulation, it shall be a defence for that person to show that he took all reasonable steps and exercised all due diligence to avoid committing the offence.

(2) Where in any proceedings the defence provided by subsection (1) involves an allegation that the commission of the offence was due-

(a) to the act or default of another person; or

(b) to reliance on information given by another,

that person shall not, without the leave of the court, be entitled to rely on the defence unless, not less than 7 clear working days before the hearing of the proceedings, he has served a notice on the person bringing the proceedings giving such information identifying or assisting in the identification of the person who committed the act or default or gave the information as is in the possession of the person serving the notice at the time he serves it.

(3) A person shall not be entitled to rely on the defence provided by subsection (1) by reason of his reliance on information supplied by another person, unless he shows that it was reasonable in all the circumstances for him to have relied on the information, having regard in particular-

(a) to the steps which he took, and those which might reasonably have been taken, for the purpose of verifying the information; and

(b) to whether he had any reason to disbelieve the information.

(4) A court, in making a decision on the defence provided under subsection (1), may take into consideration the existence of a certificate from an approved laboratory showing that the samples of consumer goods which are the subject of the prosecution had been tested before being sold and had complied with the safety standard or safety specification set out in the certificate."

13. The magistrate had this to say about the statutory defences at pp. 76 and 77 in paragraph 48:

"There is a statutory defence for sections 6 and 22. These are set out in sections 22 and 24. The appellant did not rely on any of these defences. Apart from calling Mr Wu, the appellant called no evidence to make out any of the statutory defences. There was no dispute that the appellant had supplied the pillows to retailers in Hong Kong. It was not entitled to rely on the defence under section 22(2)(a). It was also clear from the undisputed evidence that the appellant was a wholesaler of pillows. The appellant could not rely on the defence set out in 22(2)(b). There was not a shred of evidence in support of the defence set out in section 22(2)(b)(ii). Further it was clear from the record of interview from Madam Chan that the appellant had taken no steps to ensure that the pillows were safe. The appellant was therefore not entitled to rely on the defence set out in section 24 of the Ordinance."

14. The findings by the magistrate were clearly correct and fully supported by the evidence. This ground of appeal fails.

15. The fourth and last ground of appeal reads:

"The learned magistrate, though stating where the burden of proof lay, and stating the required standard of proof, erred in her approach to these principles."

16. There is no substance in this ground whatever and in the light of the conclusions I have reached on the other grounds nothing more needs to be said.

17. The appeal against conviction is dismissed.

Sentence

18. I turn now to the appeal against sentence.

19. From information supplied by the prosecution, the magistrate adopted $400.00 as the normal fine for each pillow and on this basis fines totalling $92,700.00 were imposed. The appellant was also ordered to pay $5,000.00 costs and $14,358.00 as the costs for testing the pillows.

20. At the outset of this judgment, I have set out the dates on which various events took place. The offences were committed in July and November 2000. Summonses were issued in the middle of November 2001. The trial before the magistrate commenced on 21 May 2002 and was concluded on 23 May 2002. Throughout this period up until 6 August 2002, the general safety requirement for pillows was that the pillows must pass both the smouldering test and the open flame test. On 6 August 2002, the Customs and Excise Department issued a circular to all traders which reads as follows-

"Ref: CPPB FCPN/10/5
	Date: 6 August 2002
To: All traders
Dear Sirs,
Consumer Protection Circular No. 1/2002
(Consumer Goods Safety Ordinance)
Pillows Ignitability Standards

Introduction

Under the Consumer Goods Safety Ordinance (Chapter 456, Laws of Hong Kong), all consumer goods sold in Hong Kong are required to comply with the "general safety requirement" (GSR) or "an approved standard specified for a particular type of consumer goods".

2. In considering whether a pillow complies with the GSR, we will take into account, inter alia, its ignitability standard. This circular specifies the ignitability standards for pillows that we accept.

Pillows Ignitability Standards

3. We have studied the regulations on ignitability standard requirements practiced by advanced economies. We have found that the French legislation is the most stringent and it requires pillows to pass the cigarette smouldering test as specified in ISO12952. We consider that the French requirement is appropriate and will accept passing smouldering test as specified in the standards as listed in the Annex as meeting the requirement in respect of ignitability standard. Please note that these safety standards are not exhaustive. As there are quite a number of ignitability standards internationally, we will update the relevant information in future when necessary. In addition, the possibility of specifying ignitability standards through legislation is not ruled out.

4. Traders who wish to obtain the standards listed in the Annex and other international or national safety standards may approach the following-

Production Standards Information Bureau,

Innovation and Technology Commission,

36/F, Immigration Tower,

7 Gloucester Road, Wanchai,

Hong Kong.

Telephone number:	2829 4820
Fax number:	2824 1302

5. For further enquiries, please contact, Mr Fung Wai Wing, Senior Trade Controls Officer of this Department, on 2231 4192.

21. This document clearly represents a departure from the safety standard adopted and used before 6 August 2002. The dual tests of cigarette smouldering and open flame have now been replaced by a single cigarette smouldering test. It is not in dispute that the appellant had had the pillows tested by a laboratory at their own expense and passed the cigarette smouldering test. Mr Surman submitted that following the change of policy, the offence committed by the appellant was purely a technical one and for that reason the proper sentence was not a fine but an absolute discharge. I do not entirely agree with this submission because the offences were committed in November 2000, a long time before the change of policy when the general safety requirement in force was still the dual tests. But I must accept that there is some merit in the mitigation. Taking all the factors of this case into account, I am satisfied that the fines imposed by the magistrate should be reduced to one half of the original amount, that is a fine totalling $46,350.00. The order for costs and costs of testing will remain undisturbed.

22. The appeal against sentence is allowed to the extent indicated.