ATTORNEY GENERAL v. SHUN SHING CONSTRUCTION AND ENGINEERING CO LTD

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JUDGMENT

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Cons J.A. read the judgment of Sir Alan Huggins V.P. which was the judgment of the Court:

1. This case stated by a magistrate comes before us pursuant to a reference from the High Court by Deputy Judge Eddis, Q.C.

2. The Respondent was charged with two offences in relation to work undertaken on a construction site. The first charge was that the Respondent, being the contractor responsible for a power-driven winch, failed to ensure that it was not used for raising persons other [sc. otherwise] than in accordance with reg. 37(1) of the Construction Sites (Safety) Regulations. The second charge is no longer relevant, as the appeal against the acquittal in respect of it has been abandoned.

3. The relevant facts are that the Respondent was the head contractor responsible for the construction site. A power-driven winch which was under the immediate control of a sub-contractor was used to lift a workman from the bottom of a caisson. The workman was standing on the rim of a bucket connected to the winch. That bucket was 460m.m. deep and not at least 900m.m deep, as required by the Regulations.

4. The defence, which was accepted by the magistrate, was that the Respondent had taken all reasonable steps to ensure that the winch would not be used in breach of the Regulations. On the appeal it is contended on behalf of the Crown that no such defence was open to the Respondent and that, upon the facts found by the magistrate, a conviction ought to have been entered.

5. In Warner v Metropolitan Police Commissioner [1969] 2 A.C. 256, 271E Lord Reid said:

"There is no doubt that for centuries mens rea has been an essential element in every common law crime or offence. Equally there is no doubt that parliament, being sovereign, can create absolute offences if so minded."

In relation to an offence created by statute Wright, J. said in Sherras v De Rutzen 1985 1 Q.B. 918, 921:

"There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals, and both must be considered: Nichols v Hall Law Rep. 8 C.P. 322."

It is, therefore, always a question of ascertaining the intention of the Legislature, and we cannot accept the suggestion in Reg. v City of Sault Ste Marie (1978) 85 D.L.R. (3rd Edition) 161, 170/1 that the concept of public welfare offences as a means of doing away with the requirement of mens rea for petty offences was "a judicial creation". It is the function of the courts to interpret and not to create law.

6. Warner v Metropolitan Police Commissioner (supra) was one of those difficult cases where the court had to consider the state of mind of the defendant in relation to possession, and it was held that possession of a substance which was in fact a scheduled drug was an offence even if the defendant did not know that the substance was a drug at all but believed it to be scent; if unaware of the contents of a parcel in his possession which he had no right to open, he should at the first opportunity have examined it, otherwise it would be inferred that he had accepted possession of those contents. As to the ascertainment of the intention of the Legislature Lord Reid said at p.279C:

"Normally the plain, ordinary, grammatical meaning of the words of an enactment affords the best guide. But in cases of this kind the question is not what the words mean but whether there are sufficient grounds for inferring that Parliament intended to exclude the general rule that mens rea is an essential element in every offence. And the authorities show that it is generally necessary to go behind the words of the enactment and take other factors into consideration."

As it seems to us, there is no justification in the present case for holding that other factors outweigh the plain meaning of the enactment. The contractor responsible for a power-driven lifting appliance is required to "ensure" that it is not used for raising persons otherwise than in accordance with para.(1) of reg. 37. "Ensure" means what it says, and, if the prohibited act occurs, there has necessarily been a failure to ensure that it did not occur. It was contended on behalf of the Respondent that the word "ensure" did not impose such a strict duty and that no offence was committed if the contractor showed that he had taken reasonable steps to ensure that the act did not occur. Counsel cited Reg. v. Z-H Paper Products Ltd. (1979) 52 C.C.C. (2nd Edition) 91, where the judge sought support for the more liberal interpretation of a comparable provision from the judgment of Vaisey, J. in Reliance Permanent Building Society v Harwood-Stamper 1944 Ch. 362. Vaisey, J. was concerned with applying a provision which required that a person entitled to exercise a power of sale should "take reasonable care to ensure" that the price at which an estate was sold was the best price which could reasonably be obtained. There the word "ensure" was expressly governed by the phrase "take reasonable care" and Vaisey, J. held that it did not create anything in the nature of a warranty or guarantee. That decision did not support the liberal interpretation in fact adopted in Reg. v Z-H Paper Products Ltd. Nothing that was said in the latter case persuades us that "ensure", when it is unmodified, means anything less than "make sure". That such was the intention of, the Commissioner for Labour in making reg. 37(2) is shown beyond doubt by the wording of reg. 48(1)(b), which he made at the same time. There the contractor is required to "take all reasonable steps to ensure" that no workman remains on a construction site unless he is wearing a suitable safety helmet. If the modifying words are expressed in one regulation, the courts should be slow to imply them in another regulation where they are not expressed.

7. We think that that is enough to dispose of the main argument on the appeal, and it is not necessary for us to decide the interesting question whether the law of England and of Hong Kong recognizes what Dr. Glanville Williams described as "a half way house between mens rea and strict responsibility": Criminal Law: The General Part (2nd Edition) 262. In particular we do not need to answer Question (ii) put to us in relation to this charge. It was in these terms:

"Whether I was correct in law in ruling that the subject matter of the said Ordinance, that is, the safety of workmen and others on Construction Sites, is not a matter of public safety."

However, we think it right to say that, in so far as it may be relevant to consider the purpose of a statutory provision, the safety of a section of the public such as the workmen on building sites is a matter of public safety. We do not think that what was said by the Judicial Committee in Gammon (H.K.) Ltd. v Attorney General of Hong Kong 1985 A.C. 1 should be read as limiting consideration to the safety of the public at large.

8. The only other point to which we do need to refer is the suggestion that the Respondent was not "the contractor responsible for" this winch. It was argued on its behalf that there was no necessity in the public interest to make the head contractor liable to a penalty when the sub-contractor was clearly liable. The Commissioner for Labour thought that there was: by reg. 2(2)(b)

"For the purposes of these regulations - a contractor is responsible for any plant referred to in these regulations if it is located at a construction site for which he is responsible."

It was found as a fact that the Respondent was responsible for the site, and it was therefore responsible for all the plant on the site, whether belonging to itself or to a sub-contractor. The whole scheme of the legislation is that the head contractor shall have the same responsibility for some of the statutory safety precautions when work is done by a sub-contractor as if the head contractor had done the work itself. The reasoning behind this is that it will assist in the enforcement of the regulations by encouraging the head contractor to do more "by supervision or inspection ...... or by exhorting those whom [it] may be expected to influence or control, which will promote the observance of the regulations": LIM Chin-aik v Reg. 1963 A.C. 160, 174.

9. The remaining questions put by the magistrate in relation to this charge were:

The answer we give to each of those questions is "No" and the appeal is allowed. The case is remitted to the magistrate for him to enter a conviction and to pass such sentence as he may think appropriate in all the circumstances.