HKSAR v. PABUSTAN GEMMA ALTECHE

HCMA145/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 145 OF 2011

(ON APPEAL FROM ESS 43983 OF 2010)

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BETWEEN

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REASONS FOR JUDGMENT

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1.  On 7 July 2011 I allowed the appellant’s appeal in this matter, quashed the conviction and set aside the sentence. I ordered that any fine paid by the appellant be repaid to her and that the respondent pay to her by way of costs any amount she had paid to the Duty Lawyer Service which had provided her representation in the lower court. These are my reasons for judgment.

2.  The appellant, a domestic helper, was convicted after a trial before Mr William Lam, Deputy Magistrate, of an offence contrary to section 4B(1) of the Summary Offences Ordinance, Cap. 228.  She was fined $300.  The Form 22 Magistrates Ordinance, Cap. 227 signed by the magistrate states that the appellant was convicted of the offence of “Allowing object to fall from height” and refers to section 4B(1) of that ordinance.  That was not the offence the appellant faced.

3.  The particulars of the summons to which the appellant pleaded not guilty read as follows :

“Information has been laid that you on or about 1 November 2010 did drop An aluminum window from a building at Flat B, 23/F, Tsui Lan Mansion, No. 5 Westlands Road, Quarry Bay, Hong Kong to the Danger of a person in or near a public place, namely Outside, Tsui Lan Mansion, No. 5 Westlands Road, Quarry Bay, Hong Kong.” [emphasis added]

4.  The appellant was represented in the lower court by Mr Richard Donald, instructed by the Duty Lawyer Service.

5.  Most of the prosecution’s case was admitted. The following is relevant for the purposes of the appeal.  At about 2.45 p.m., on 1 November 2010, a security guard at the premises named in the charge found that an aluminum framed glass window, approximately two feet by four feet, had fallen to the ground.  The police were called. Enquiries revealed that the window had fallen from the 23/F.  Police officers went to the flat from which the window had fallen.  There they found the appellant who told them that when she earlier returned home to the flat she had opened the window and it had fallen to the ground.  She had no intention to let this happen.  That was the sum total of the evidence.

6.  The magistrate determined that the offence created by section 4B(1) was an offence of strict liability, he said this :

“11. I rule that Section 4B(1) is an offence of strict liability, that the Prosecution does not need to prove mens rea of any kind, that the Deft was in control of the act because she was the person opening the faulty window, and that because it had fallen onto a public area the act had endangered the public. The fact that the Deft was a domestic helper is in my view irrelevant at law.”

7.  He then proceeded to convict the appellant.

Discussion

8.  The relevant part of section 4B reads  :

“If anything is dropped or allowed to fall from any building to the danger or injury of any person in or near a public place, the person who drops or allows it to fall commits an offence and is liable to a fine of $10,000 and imprisonment for 6 months.” [emphasis added]

9.  In the course of submissions the magistrate was alerted to the fact that a contravention of section 4B(1) can be committed and therefore charged in two ways.  A defendant may be charged with dropping anything (as the appellant) was or allowing anything to fall.  On behalf of the appellant it was pointed out to the magistrate that as the prosecution had chosen to charge the appellant with dropping the aluminum window then it was incumbent upon them to show that she did just that. 

10.  The magistrate dealt with this in the following way, he said :

“6 [This submission] can be disposed of quickly, because the statute uses both the wordings ‘dropped’ and ‘allowed to fall’. The Prosecution does not say the Deft had intentionally dropped anything, but clearly this is a case of ‘allowing the window to fall’. …”

And later, in the same paragraph :

“… Section 27 of the Magistrates Ordinance Cap.227 requires me to amend the wording in the Summons if needed, but as both wordings occur in the same subsection there is no need for me to make any amendment to the Charge.”

11.  The magistrate has here fallen into error.  Section 4B(1) creates two offences, namely :

(1) dropping an object from a building; and

(2) allowing an object to fall from a building.

12.  The elements of each offence are different.  The act of dropping an object from a building requires the prosecution to establish not only the fact that an object fell to the danger of the public, the prosecution must prove it was dropped by a defendant in the sense of making a conscious decision to do just that.  This is to be distinguished from allowing an object to fall.  The first part of the section does not create an offence of strict liability.  The magistrate relied on the decision of Hooper J in R v Chan Pui Kay [1992] 1 HKCLR 218 wherein he concluded that the offence created by subsection 4B(1) was an offence of strict liability.  Hooper J was not there dealing with a charge of “dropping” an object from a building, the appellant there had been charged with “allowing an object to drop”.  That authority had no bearing on the offence with which this appellant was charged.

13.  Section 27 of the Magistrates Ordinance, Cap. 227 requires a magistrate to amend a complaint, information or summons which is defective or where there is a variance between the evidence and the charge  and where any prejudice to a defendant could be cured by an order as to costs, an adjournment or leave to recall and further examine witnesses or call other witnesses.

14.  This did not happen in the instant case.  The magistrate appeared to have assumed that section 27 allowed him to deal with the matter on the basis that whilst the appellant was charged with dropping an object he could, without adopting the mandatory procedures provided for in section 27, deal with the matter as if the appellant had been charged with allowing an object to fall.  In this he was in error.  As is apparent from the submission made on the appellant’s behalf at the conclusion of the trial that the appellant’s case was that the prosecution had not proved that she had dropped the window.  The appellant did not give evidence.  Had the charge been amended to “allowing the window to fall” she may well have been advised differently.

15.  There was a material irregularly in the appellant’s trial.

16.  The appeal was allowed.  The conviction was quashed and the sentence set aside.