HKSAR v. CHEUNG KEE FUNG CHEUNG CONSTRUCTION CO LTD

HCMA 498/2018

[2019] HKCFI 1383

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 498 OF 2018

(ON APPEAL FROM KOWLOON CITY MAGISTRACY
CASE NO KCS 32384 OF 2017)

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J U D G M E N T

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Introduction

1.  This case concerns an alleged breach of a regulation of a situation involving danger to public health, the spread of mosquitoes, on construction sites.

2.  In the afternoon of 14 July 2017, an officer, Mr. Hung, from the Food and Environmental Hygiene Department (FEHD) carried out anti-mosquitoes’ operation by going to a construction site in To Kwa Wan, Kowloon, where the appellant company was the appointed contractor, to inspect any signs of “wigglers” or mosquito larvae.

3.  Mr Hung was accompanied by the site safety officer of the appellant company, Mr Li, throughout the inspection. There on the first floor of a building under construction, collected water was found in a sag in the stone kerb with some moving mosquito larvae in it, where Mr Hung took two bottles of the water sample giving one to Mr Li for retention and taking the other back for examination.

4.  The water sample was examined by Miss Tsang, an insect expert from FEHD, who confirmed that it contained mosquito larvae. Consequently, the appellant company was summonsed for violation of a regulation under Section 27(3) of the Public Health and Municipal Services Ordinance.

5.  Section 27(3) read:

“If any larvae or pupae of mosquitoes are found on any premises consisting of a building site of which there is the appointed contractor, the appointed contractor of the site shall be guilty of an offence.”

6.  I hasten to add that the law does not provide any statutory defence for an offence under Section 27(3), and it is clear from its provisions that once mosquitoes larvae or pupae are found on a construction site, the appointed contractor of the site would directly be responsible on the basis of its acquisition of a particular status, ie, the appointed contractor.

7.  The case was heard before Deputy Magistrate, Miss Frances Leung, sitting in the Kowloon City Magistracy. The appellant company, legally represented, was convicted after trial and fined $6,500. It now appeals against conviction only.

8.  The trial was originally conducted in Chinese in the court below and on appeal the company retains Mr. Andrew Bruce to conduct the appeal.

ISSUES ON APPEAL

9.  The issues on appeal, as in the lower court, are that:

A.   Whether the larvae were alive at the time of collection (Ground 1 of Appeal);

B.   Whether the common law defence had been made out by the appellant company (Ground 2 of Appeal).

Ground 1

10.  The sag in question measures 12” by 10” by 8” with water inside of 3 inches high. Mr Hung testified that he saw some white/greyish suspected mosquito larvae “moving about” in the water but no reference to that part concerning “moving about” in his witness statement.

11.  His explanation was that he shined the torch on the water and saw they were moving; hence he was certain that they were alive. He did not consider it necessary to describe it “moving” in his statement because were they not alive, he said, he would not have taken water samples for examination.

12.  Mr Bruce contended that if the larvae might not have been alive, then the case is over at that point because the larvae may have been killed by the effective anti-mosquito efforts of the Appellant. The Defence called evidence to support this contention including the anti-mosquito rules and procedure in force at the site. Hence even though mosquito larvae existed it would not have been alive.

13.  Mr Sean, SADDP, for the respondent submitted that this is entirely a matter within the province of a fact-finder; unless it is plainly wrong, the appellate court would be very slow to interfere.

14.  The learned magistrate, in her analysis of the evidence, said that she accepted the explanation given by Mr Hung that the reason he collected the water samples was because the mosquito larvae were moving about, and hence alive.

15.  The reason given was good and valid, in my view, because Mr Hung was there to collect evidence, if any, of non-compliance with regulation relating to mosquito breeding, part of his duties was to collect live mosquito larvae, for he must have known that “dead ones” would not be good enough for it could be argued that that might be the result of the anti-mosquito measures taken by the appellant company.

16.  Remember Mr Hung had given a bottle of the same water sample to a representative, Mr Li, of the appellant company at the time; were Mr Hung to say anything different in court, there would be evidence to contradict it.

17.  On the evidence before the court, the magistrate was fully entitled to come to the conclusion as she did that the mosquito larvae were indeed alive at the time of collection.

Ground 2

18.  It was common cause at trial that the offence created by Section 27(3) is one of strict liability but the common law defence[1] (it, honestly and upon reasonable grounds, believed in the existence of facts which if true would make the act innocent) is available to the appellant company. The onus is on the Appellant to prove to the required standard of balance of probability.

19.  In reaching her conclusion that the appellant company failed to prove to the required standard, the learned magistrate said that she came to the view that the appellant company was negligent and loop holes existed in handling the question of water accumulation at the site, which led to the accumulation of water resulting in mosquito hazards.

20.  She commented that the plank, which is hollow in the middle, the appellant company used to cover the sag was unable to effectively stop water getting into it. To the contrary, such hollow plank made it difficult for one to discover the existence of water under the plank inside the sag. The situation further made it more difficult to clear up the water, to add anti-mosquito sand or to spray anti-mosquito oil.

21.  The argument of Mr Bruce on this ground is twofold:

A.   It is the controlling mind, as Mr. Bruce put it, of the company that counts in proving the honest mistaken belief;

B.   The standard demanded by the magistrate in compliance with the law amounted to a counsel of perfection.

22.  Mr Bruce submitted that the question the learned magistrate should have asked herself is what the state of mind of the company was and not that of Mr Chow, the defence witness, a site safety supervisor of the company.

23.  Mr Bruce went on to say that it’s an honest belief that they are doing a good job and as long as that is reasonable, then the defence is made out. And merely thinking of other things they could have done which has all the benefits of hindsight, which is a dangerous vision. Even if there might have been other things, unless they were glaringly obvious, what the magistrate has done is the imposition of a standard which was unreasonable.

24.  Mr Sean argued that it was the intent of the legislature to make it a criminal offence for certain contractors when their employees were acting on behalf of the company. The company, being a non-natural person, cannot take steps, conduct measures, or set up safety measures; they were all done through the people employed or controlled by the company which would physically handle such measures in prevention of, for example, the breeding of larvae.

25.  Mr Sean went on to suggest that if Mr Bruce was right about the controlling mind of the company, as there was no evidence from the CEO or anyone from the top management of the company before the court (the defence called only one witness, Mr Chow, the site safety supervisor), since the burden was on them, evidencewise, they could not say the controlling mind of the company has held such an honest belief.

26.  I think what Mr Bruce was suggesting is that the court should look at the conduct and state of mind of those people from the top management of the company to see if the common law defence was made out. The reason being these corporate officials are sufficiently important in the hierarchy of the company whose conduct and state of mind could rightly be taken to be that of the company.

27.  As Mr Sean has argued, Mr Bruce’s difficulty soon becomes apparent because none of these high-ranking officials had come forward to testify before the court. The only employee of the company called at trial was Mr Chow, the site safety supervisor, whose importance in the company’s scheme of things was unlikely considered to be identified with the company, otherwise Mr Bruce would not have made such a submission.

28.  It is worth noting that the idea of “controlling mind” of a company probably comes from the identification doctrine. Apart from the theory of vicarious liability, there is another theory attributing criminal liability to limited companies, that’s the doctrine of identification.

29.  The identification doctrine, attributing to the company the mind and will of senior directors and managers, was developed in order to avoid injustice: it will bring the law into disrepute if every act and state of mind of an individual employee was attributed to a company which was entirely blameless. (per Lord Reid in Tesco supermarkets Ltd v Nattrass [1972] AC 153 at 169).

30.  Bearing in mind, here what Mr Bruce talked about is a defence available to a company rather than criminal liability attributed to a company. In the circumstances, the aforesaid “injustice” should not have arisen.

31.  On the contrary, I would think the defence should be made available to the company as a whole in the sense that the court would consider what measures the company through its employees had put in place in combating the problem of mosquito breeding, and then determine whether or not the company had held the honest and reasonable belief.

32.  As the evidence showed in the instant case, the appellant company used a plank (hollow in the middle) to cover the sag, which, the learned magistrate rightly said, was unable to effectively stop water flowing into the sag. Obviously, this would allow stagnant water to collect and consequently, the creation of the ideal condition for mosquito breeding.

33.  Without having to incur great expenses, certainly there was something more the company could have done in the circumstances to improve the situation such as filling up the sag with sand or covering it with a water-proof plank etc.

34.  The deficiency or inadequacy of the measures taken by the company, as pointed out by the learned magistrate, was certainly not a counsel of perfection.

35.  At paragraph 39 of her statement of findings, the learned magistrate said (in Chinese):

「因此，本席認為被告公司在處理防蚊患的問題上根本過於馬虎，亦不全面，所以不可能有合理的信念認為地盤不會有蚊患滋生的情況。」

“Therefore, I consider that in handling the question of the prevention of mosquito hazard the defendant company was actually acting too loosely, and incomprehensively, therefore it cannot have reasonable belief that at the site no circumstances where mosquito will come to exist.” (Translation done by a court translator.)

36.  Given the evidence as it was before the learned magistrate, her conclusion was inescapable that the appellant company had failed to avail itself of the common law defence.

37.  For the reasons given above, all the grounds of appeal must fail, and the appeal is therefore dismissed.