HKSAR v. FASTWIN GLOBAL INVESTMENT LTD

HCMA 255/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL CASE NO 255 OF 2011

(ON APPEAL FROM STS 9567 OF 2010)

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

BETWEEN

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

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

JUDGMENT

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

1.  The appellant company was convicted after trial of failing to comply with an order contravening section 40(1BA) of the Buildings Ordinance, Cap 123. The appellant company now appeals against the conviction. The trial was conducted in Chinese but I allowed the appeal to be conducted in English at the request of counsel for the appellant, so I shall deliver my judgment in English.

Prosecution’s case

2.  It was not disputed at the trial that the appellant was the registered owner of the subject premises in Hong Lok Yuen and had failed to comply with a demolition order.

3.  The Building Authority (“the Authority”) had received a complaint about unauthorized building works at the subject premises and on 19 August 2008, PW1 had proceeded to the premises and he also revisited the subject premises on 31 December 2008.  He identified three unauthorized building works and took photographs of the unauthorized works.  Subsequently, PW2 a senior structural engineer of the Authority confirmed that the building works were unauthorized.  On 5 March 2009, an order was served on the appellant requiring it to demolish the unauthorized building works within  days. However, on 25 August 2010, when PW3 visited the subject premises the unauthorized structure had not been demolished.  So on 22 September 2010, the Authority took out a summons contrary to section 40(1BA) of the Buildings Ordinance, Cap 123 for the appellant’s failure to comply with the order.

4.  The appellant elected not to give evidence.  The sole issue raised at the trial and on the appeal was whether section 40(1BA) is a continuing offence. 

5.  The appellant had fully argued this point before the learned magistrate and the learned magistrate had ruled that it was a continuing offence.

Appeal

6.  Section 40(1BA) says:

“Any person who, without reasonable excuse, fails to comply with an order served on him under section 24(1) shall be guilty of an offence and shall be liable on conviction—

(a) to a fine of $200000 and to imprisonment for 1 year; and

(b) to a fine of $20000 for each day during which it is proved to the satisfaction of the court that the offence has continued.”

7.  The only ground of appeal advanced by the appellant counsel is that the prosecution had not commenced within 12 months of the commission of the offence or within 12 months of the offence having been discovered or coming to the notice of the Authority, and therefore Mr Cheng, SC, counsel for the appellant, submitted that the learned magistrate had erred in holding that the court had jurisdiction to deal with this summons.

8.  At the beginning of the appeal, Mr Cheng SC had submitted that I should refer the matter to a full Court of Appeal because of the matter of law raised by the appellant, which he submitted, is of general and public importance.  However he did not vigorously pursue the submission and I had decided that the law is well settled in this case.

9.  The learned magistrate had stated in paragraph 9 of his Statement of Findings that:

“The wording and interpretation of Section 40(1BA) is very clear. For each day during which the offence continues, the Ordinance clearly provides separate penalty. The logic behind this case is same as the Court of Final Appeal case of HKSAR v. Li Li Mua although the ordinance involved is different from this case. The section in this case aims at the conduct of the Appellant in failing to comply with the Order after having been given a clear time limit. The Appellant committed an offence once the deadline defined in the order has passed. Unless the act of ‘not complying with the order’ stopped, the Appellant was committing the offence continuously. This offence can be ‘stopped’ for example if the Appellant complies with and fulfils the requirement in the order shortly after the defined deadline of the Order. Therefore the Court is of the view that the offence of ‘not complying with order’ constitutes a continuing offence. The Appellant committed the offence immediately after the expiry of the defined deadline in the Order and it was a continuing offence until the act of ‘not complying with the order’ stopped.”

10.  Mr Cheng sought to argue that the magistrate was wrong to conclude that the subject section in the Ordinance was a continuing offence because there was the daily penalty provided and that the offence can be “stopped” if the appellant complied with the order.  Mr Cheng argued that the presence of a daily penalty is not determinative of whether the offence is a continuing one.  Mr Cheng submitted that it is a question of statutory construction and the actual words of the statute and the principle to be applied is whether the statute concerns a “do or desist principle”.  If this is a desist matter then it is more likely than not it is a continuing offence, for example in cases of overstaying (see HKSAR v Li Li Mua [2001] 1 HKLRD 441). Mr Cheng, particularly, prays in aid the judgment of Stock J (as he then was) in the case of Jiang Enzhu v Lau Wai Hing [2000] 1 HKLRD 121 at page 153:

“ ‘Whether a statutory provision creates a continuing obligation such that failure to comply with it creates a continuing offence necessarily depends on the language of the provision in question and on its correct construction…’ (see British Telecommunications plc v Nottinghamshire County Council unreported, 21^st October 1998, and reported in summary [1999] Crim L Rev 217); and in R v Wimbledon Justices Ex parte Derwent [1953] 1 QB 380, Croom‑Johnson J said that : ‘As a general rule the court is not, I think, eager to find continuing offences created by a statute, and certainly not without express words which make clear that that was the intention of the legislature when the statute was passed’.

Generally speaking, an offence of non‑compliance with a ‘do’ provision is complete when the period for compliance ends, whereas the courts are more ready to construe a continuing obligation where there is a ‘desist’ provision.  Section 19 is a ‘do’ provision, and there are other provisions which demonstrate legislative intent in this case, not least section 50 which empowers the Commissioner, where he is of the opinion that the data user is contravening a requirement under the Ordinance or has contravened a requirement in circumstances that make it likely that the contravention will continue or be repeated, to direct the data user to remedy the contravention, and failure then to comply is specifically made a continuing offence by the terms of section 64(7) of the Ordinance, the reference in which to a continuing offence is in stark contrast to section 64(10). …”

11.  Mr Cheng argued that the relevant section in this case is time-barred as it is expressly stated in section 40(8). And further Mr Cheng argued that under subsection 8 the Authority had power to demolish and to recover the costs from the property owner so therefore it makes the offence unlikely to be a continuing one. 

12.  Mr Cheng also relies on the case of Sloggett v Adams (1953) 73 WN (NSW) 206 where the defendant in New South Wales was served with a notice under the Local Government Act 1919 requiring him within 28 days to eradicate, on land occupied by him, certain plants proclaimed under the Act to be noxious.  The defendant in that case failed to eradicate the subject plants and that information was laid more than six months after the expiry period of the notice.  Owen J in that case said at page 208 that:

“ Where, as here, the notice sets a time for the doing of the act which is required to be done, the offence is, in my opinion, committed once and for all if that act is not done within the time set. … I would only add that if the present case is one of a continuing offence, then the offence is one which the landholder could never stop committing. Nothing he could do after the twenty-eight days had expired could ever be a compliance with the notice.”

13.  Sloggett’s case was cited with approval and applied in the latter case of EPA v Alkem Drums reported at 212 Australian Criminal Law Review 1512.  Therefore, Mr Cheng argued that reading section 40(8) of the subject Ordinance this prosecution must fail because the offence is not a continuing one.

14.  Section 40(8) provided that:

“Any prosecution under the provisions of the Ordinance may be commenced within 12 months of the commission of the offence or within 12 months of the same being discovered by or coming to the notice of the Building Authority.”

15.  I would point out that this section only provides that the prosecution under this Ordinance “may be commenced”.  It is not a mandatory provision that the prosecution must be commenced within 12 months, so I would agree with the learned magistrate’s findings as stated above that the offence is a continuing one not only based on the fact that there is provision of a daily penalty in the Ordinance but also that the offence can be “stopped” if the appellant had complied with the order shortly after the deadline.  I agree with Mr Tam that Sloggett’s case was decided on the specific language of the Act and there was no daily penalty provision.  I would also say further that as stated above section 40(8) does not mandatorily say that the prosecution have to commence within 12 months but that it may commence within 12 months.  Thus the legislative intent was clear that they intended this to be a continuing offence.  As the CFA noted in HKSAR v Li Li Mua [2001] 1 HKLRD 441 at page 446 I—J:

“Overstaying is plainly a continuing offence. By its very nature, it was an offence committed continuously from the time when it commenced to the time when it came to an end”.

Although the CFA was dealing with an immigration offence, the reasoning is applicable to the present case.  Therefore I do not find the argument advanced by Mr Cheng, SC, to be persuasive.  The appeal is therefore dismissed.