Re Jetex HVAC Equipments Ltd.

MP No. 253 of 1994

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. The Applicant is seeking the Judicial Review of the decision of Mr. Barnabas Fung, a Magistrate to amend the summons relating to an alleged offence under Section 6A(2)(a) of the Factories and Industrial Undertakings Ordinance Cap. 59.

2. The amendment which the learned magistrate ordered was to delete the name "Her Majesty the Queen" and substitute therefor the name "The Commissioner of Labour".

3. The relief sought is an Order of Prohibition prohibiting the magistrate from proceeding with the trial and an Order of Certiorari quashing his order for the said amendment together with a Declaration to the effect that the amendment was unlawful.

4. It would seem to me that the issue which arises on this Review is within a narrow compass. It involves an interpretation of the true meaning of Section 17 of the Factories and Industrial Undertakings Ordinance.

"17. Prosecution of offences

(1) Prosecutions for offences against this Ordinance may be brought in the name of the Commissioner for Labour, and may be commenced and conducted by any officer of the Labour Department.

(2) Save as is provided in subsection (1), no prosecution for an offence against this Ordinance shall be commenced without the written consent of the Commissioner for Labour.

(3) Nothing in this section shall be deemed to derogate from the powers of the Attorney General in relation to the prosecution of criminal offences."

5. Mr. Remedios for the Applicant submitted that it was clear from this that there were two separate situations which could arise. Either prosecutions were conducted in the name of the Commissioner in which case obviously his consent was not required or it was conducted by some other party when such consent was mandatory.

6. If it was conducted by someone other than the Commissioner it would be in the name of Her Majesty the Queen by virtue of the provisions contained in Section 8 of the Magistrates Ordinance Cap. 227.

7. The proceedings which were commenced against the Applicant were in the name of Her Majesty. It was however manifest on the fact of the summons that the prosecution was being conducted by the Commissioner of Labour as there is a statement on the summons that "The information was laid by Leung Ng Sau Ming of the Labour Department".

8. I have considerable sympathy for the learned magistrate who adopted a common sense approach to this problem and came to the conclusion that no injustice whatever would occur if pursuant to the wide powers conferred by Section 27 of the Magistrates Ordinance he effected the amendment complained of and proceeded to hear the case on its merits.

9. I regret though that I do not think that he was able to do this.

10. It would seem to me to be quite clear from Section 17(1) that the prosecution must be in the name of the Commissioner if the requirement of obtaining his consent is to be obviated. It is not enough to say that it is obvious from the surrounding circumstances that the prosecution is being undertaken by the Labour Department. The question which has to be answered is - Is the prosecution in the name of the Commissioner? If one is unable to answer this in the affirmative it is then necessary to obtain the Commissioner's written consent.

11. Mr. Sham for the Respondent conceded that if I reached this conclusion the effect of the absence of a written consent would render the proceedings a nullity thus taking the amendment outside the scope of the amendments contemplated by Section 27.

12. For the reasons I have given I order that the relief sought will be forthcoming. I will hear the parties on costs.