GAMMON CONSTRUCTION LTD v. HKSAR

HCAL 95/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 95 OF 2014

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Introduction

1. The two applicants, Gammon Construction Limited (Gammon) and Leighton Contractors (Asia) Limited (Leighton), seek leave to apply for judicial review of a magistrate’s decision made on 16 June 2014 to amend offences variously laid against them in relation to three industrial accidents[1]. The magistrate’s decision was made under power of review of an earlier decision not to grant the amendments sought by the prosecution.  The applicants argued that the offences were not capable of amendment or the amendments were time‑barred when they were made.

2. In each case, the relief sought is an order of certiorari, quashing the decision of the magistrate granting the prosecution leave to amend the informations and a declaration that the magistrate:

(i) had no jurisdiction in the matter on 16 June 2014;

(ii) had no power to amend the information pursuant to section 27 of the Magistrates Ordinance, Cap 227; and

(iii) exercised his power to amend under section 27 in a manner which was unjust.

3. Interim relief was also sought if leave was granted for a stay of the proceedings pending the hearing and determination of the substantive applications for judicial review.

Background facts

4. Before I discuss the grounds of judicial review, it is necessary that I provide a brief background to the case.  Both Gammon and Leighton are major contractors involved in the construction industry.  They have worked on various construction projects across Hong Kong and for this purpose engage a number of subcontractors. The three sets of criminal proceedings arise from three accidents which occurred in May and November 2011 and April 2012.  Both Gammon and Leighton were originally charged under ss 6A and 13(1) of the Factories and Industrial Undertakings Ordinance, Cap 59 (the Ordinance) in relation to alleged breaches under the Ordinance.

5. Gammon and Leighton entered into a joint venture in respect of various contracts for the West Kowloon Terminus Approach Tunnel (South).  Gammon and Leighton were the main contractors for the Express Rail Link Contract 811B (Contract 811B) and Contract 810A (Contract 810A). It was in relation to three industrial accidents with respect to these contracts that the applicants and others were prosecuted for offences under the Ordinance. 

6. The first case concerned an incident on 13 May 2011 in which it was alleged that on employee of Long Fortune Construction Engineering Limited (Long Fortune) was injured.  It was also alleged that Long Fortune was a subcontractor engaged by Gammon and Leighton in the performance of Contract 811B.  On 26 October 2011, proceedings were instituted against Gammon and Leighton for two offences under s 13(1), as principals of the industrial undertaking and Long Fortune for two offences under s 6A, as the employer[2]. The expiry date for laying any information in respect of the incident was 12 November 2011.

7. The second case concerned an incident on 29 November 2011 in which it was alleged that an earth‑drilling machine being operated by an employee of Trevi Construction Company Limited (Trevi Construction) suddenly toppled but without injury caused to him.  It was also alleged that Trevi Construction was a subcontractor engaged by Gammon and Leighton in the performance of Contract 810A. On 24 May 2012, proceedings were instituted against Gammon and Leighton for an offence under s 13(1), as principals of the industrial undertaking and Trevi Construction  for an offence under s 6A, as the employer[3]. The expiry date for laying any information in respect of the incident was 28 May 2012.

8. The third case concerned an incident on 5 April 2012 in which it was alleged that an employee of Gammon was injured.  It was also alleged that Gammon was a subcontractor engaged by Leighton in the performance of Contract 810A.  On 26 September 2012, proceedings were instituted against Leighton for two offences under s 13(1), as a principal of the industrial undertaking and Gammon for two offences under s 6A as the employer[4]. The expiry date for laying any information in respect of the incident was 4 October 2012.

Proceedings in the magistrate’s court

9. It is appropriate that I briefly describe how proceedings by summons are commenced and conducted in the magistrate’s court.  Proceedings in the magistrate’s court are primarily governed by the Magistrates Ordinance.  There is also a body of related legislation and case law that apply[5].

10. Where a complaint is made to or information laid before a magistrate or an authorized officer, he may issue a summons to the person against whom the complaint has been made or information laid, stating the matter of the complaint or information and requiring him to appear at a specified time and place before a magistrate to answer to the complaint or information and to be further dealt with according to law[6].

11. A complaint or information will usually take the form of a brief statement of facts and include a statement and particulars of a charge or charges.  A summons may be issued without consideration of the complaint or information by the magistrate or authorised officer, but if a magistrate does consider the complaint or information, he may for good cause refuse to issue a summons[7].

12. At the hearing, when both the complainant or informant and the defendant appear, the magistrate “shall proceed to hear and determine the case.”[8] If the defendant does not admit the truth of the complaint or information, the magistrate is required to proceed to hear the case with the presentation of evidence by the parties[9].  The magistrate can adjourn the hearing as he thinks fit[10].  The magistrate has a general power to amend a complaint, information or summons[11] and specific provision is made for amendment in the circumstances contemplated in s 27 which reads:

“(1) Where it appears to the adjudicating magistrate that there is-

(a) a defect in the substance or form of any complaint, information or summons; or

(b) a variance between the complaint, information or summons and the evidence adduced in support of it,

he shall, subject to subsection (2)-

(i) amend the complaint, information or summons if he is satisfied that no injustice would be caused by that amendment; or

(ii) dismiss the complaint, information or summons.

(2) The adjudicating magistrate shall amend the complaint, information or summons where-

(a) the defect or variance mentioned in subsection (1) is not material; or

(b) any injustice which might otherwise be caused by an amendment would be cured by an order as to costs, an adjournment or leave to recall and further examine witnesses or call other witnesses.

(3) Following an amendment to a complaint, information or summons, the adjudicating magistrate shall-

(a) read and explain the amended complaint, information or summons to the defendant;

(b) give leave to the parties to call or recall and further examine such witnesses as may be reasonably required by a party having regard to the nature of the amendment;

(c) grant such adjournment as may be reasonably necessary to enable the parties to call or recall witnesses and to prepare their cases;

(d) if he thinks fit, make an order that the complainant or informant shall pay to the defendant such costs, not exceeding $5000, as may be occasioned by the amendment; and

(e) give judgment upon the substantial merits and facts of the case as proved before him, having regard to the offence charged in the complaint, information or summons as amended:

Provided that, if the amendment is made after the case for the complainant or informant is closed, no further evidence may be called by the complainant or informant other than evidence that would, apart from this section, be admissible in rebuttal.

(4)  In this section, ‘amend’ includes the substitution of another offence in place of that alleged in the complaint, information or summons.[12]”

13. Under s 26, in the case of a summary offence, unless otherwise specified, the making of any complaint or laying of any information must be made or laid within six months from the time when the matter first arose.

The charges

14. The offences against the applicants in relation to the three cases were laid under s 6A and s 13 of the Ordinance.

15. Section 6A(1) reads:

“It shall be the duty of every proprietor of an industrial undertaking to ensure, so far as is reasonably practicable, the health and safety at work of all persons employed by him at the industrial undertaking.”

16. Section 6A(2) sets out a list of matters to which the proprietor’s duty extends, and seeks to ensure that the work place and environment are safe and that workers are, as far as is reasonably practicable, free from risks and harm.  Section 6A(3) and (4) make it an offence for a proprietor of an industrial undertaking to contravene this section.

17. Section 13 reads:

“(1) Except as may be otherwise provided by regulations made under this Ordinance, the proprietor of every industrial undertaking in or in respect of which any offence against this Ordinance has been committed shall be guilty of a like offence, and shall be liable to the penalty prescribed for such offence.

(2) It shall be no defence to a prosecution of the proprietor of an industrial undertaking for an offence against this Ordinance that the offence was committed without his knowledge or consent or that the actual offender has not been convicted of the offence.

(3) Nothing in this section shall apply to an offence under section 6B or 6BA (15).”

18. Section 6A(1) imposes a general duty on a proprietor of an industrial undertaking to ensure the safety of employees.  A proprietor is liable to criminal prosecution for any contravention of that duty as specified under the section.  Section 13(1) makes a proprietor of an industrial undertaking guilty for the like offence that has been committed against the Ordinance in or in respect of the industrial undertaking.  “Proprietor” under the Ordinance is defined widely and includes a person having management or control of the business that is carried on in the industrial undertaking or workplace[13]. Importantly, s 13(2) provides that it shall be no defence to a prosecution of the proprietor of an industrial undertaking for an offence against the Ordinance that the offence was committed without his knowledge or consent or that the actual offender had not been convicted of the offence.  For an offence under s 13, the prosecution must prove that an offence against the Ordinance has been committed for a proprietor to be guilty of a like offence. In other words, an industrial undertaking would usually involve a main contractor(s) and a subcontractor(s) who would come within the definition of a proprietor.  A subcontractor which committed an offence against the Ordinance under s 6A would make the main contractor liable to prosecution for a like offence under s 13(1).

19. An example of the original charge laid against the applicants can be seen by reference to the charge in KTS 20449/2011 which read:

“Information has been laid that you, on 13 May 2011, were a proprietor of the industrial undertaking at Express Rail Link Contract 811B West Kowloon Terminus Approach Tunnel (South) in which an offence against the Factories and Industrial Undertakings Ordinance, Cap. 59 had been committed, namely an offence of failing to provide and maintain a system of work for the transportation of concrete blocks for hoarding erection by using the truck‑mounted crane, that were, so far as was reasonably practicable, safe and without risks to health of the persons employed at the industrial undertaking, contrary to sections 6A(1), 6A(2)(a) and 6A(3) of the Factories and Industrial Undertakings Ordinance, Cap. 59 had been committed.

20. The amended charge in KTS 20449/2011 reads:

“Information has been laid that you, on 13 May 2011, were a proprietor of the industrial undertaking at Express Rail Link Contract 811B West Kowloon Terminus Approach Tunnel (South) in which an offence against the Factories and Industrial Undertakings Ordinance, Cap. 59 had been committed, namely an offence of failing to provide and maintain a system of work for the transportation of concrete blocks for hoarding erection by using the truck‑mounted crane, that were, so far as was reasonably practicable, safe and without risks to health of the persons employed by Long Fortune Construction Engineering Limited at the industrial undertaking, contrary to sections 6A(1), 6A(2)(a) and 6A(3) of the Factories and Industrial Undertakings Ordinance, Cap. 59 had been committed by Long Fortune Construction Engineering Limited which was a proprietor of the industrial undertaking.” (Underlining my emphasis)

21. The amendment to the original charge was the inclusion of the passages that are underlined in the amended charge which sought to particularise the party that had committed the offence under the Ordinance.

22. The amendment that the prosecution sought and which was granted by the magistrate was to aver the party who committed the s 6A offence in the s 13 charge.  This amendment was in line with the Court of Final Appeal decision in Paul Y General Contractors Ltd v HKSAR [2013] 6 HKC 72 (Paul Y), where a similarly framed charge was found to be bad because it failed to aver the person who committed the s 6A offence.  This was essentially the basis of the applicants’ challenge of the magistrate’s decision to amend the charges.

Arguments before the magistrate

23. The Court of Final Appeal delivered its decision in Paul Y on 26 July 2013 and soon thereafter, on 30 August 2013, the prosecution applied to amend the summonses in the three sets of proceedings.  The magistrate initially dismissed the application primarily on the argument of the applicants that the summonses were a nullity by reference to AG v Wong Lau [1993] 1 HKCLR 257 (Wong Lau) which had been corrected in Secretary for Justice v Yau Yuk Lung (2007) 10 HKCFAR 335 (Yau Yuk Lung) at paras 77 to 83, where it was held that the notion of nullity was inapplicable in the context of s 27.  The applicants argued that the Court of Final Appeal in Paul Y, determined that charges in the same terms as laid against them were bad in law and unknown to the law.  The applicants argued that the original charges were a nullity because of the decision in Paul Y and that any new charges would be out of time and statute barred.  The magistrate considered the prosecution’s application for amendment and decided that the original charges were a nullity and refused the amendment application.

24. Mr Guy O’ Loghlen Reynolds, counsel for the applicants, argued against the amendment application before the magistrate. He made six points.  First, that the charges as laid were not known to the law.  He principally relied on the concurring judgment of Gleeson NPJ in Paul Y at para 91.  Secondly, that the charges in the case were indistinguishable with the charges in Paul Y.  Thirdly, that the charges in the case were also not known to the law.  Fourthly, that the charges were a nullity.  He relied on Wong Lau at 268, lines 11 to 23.  Fifthly, that if the charges were a nullity then they could not be amended.  He relied on Wong Lau at 264, lines 17 to 26.  He dismissed the cases relied on by the prosecution to support the application as dealing with amending charges which were not a nullity.  It appears the cases were Poon Chau Cheong v Secretary for Justice (2000) 3 HKCFAR 121 (Poon Chau Cheong), Yau Yuk Lung and HKSAR v Tse So So (2007) 10 HKCFAR 368 (Tse So So).  Sixthly, if the charges were a nullity then the court did not have jurisdiction to amend.  He relied on R v Bolton (1980) 1 QB 66 and Davies v Andrews (1930) 25 Tas LR 84.

25. Mr Reynolds went on to argue why the charges were not known to the law.  He again made six points. First, the charges alleged that the applicants breached s 6A.  Secondly, the charges alleged that the applicants breached s 13.  Thirdly, the charges alleged that the applicants breached the two sections as the proprietor of an industrial undertaking.  Fourthly, the charges alleged that the applicants’ acts were contrary to ss 6A and 13 in combination. Fifthly, the charges alleged a breach of s 6A by someone other than the applicants who was not named.  Sixthly, the charges did not mention the offence of the third party.

26. The prosecution applied for a review under s 104 of the Magistrates Ordinance which, after a series of adjourned hearings, was heard on 16 June 2014 when the magistrate granted the amendments. 

Decision of Paul Y

27. In Paul Y, Chan PJ in his judgment explained that under s 13(1), the prosecution must prove that first, the accused was a proprietor in an industrial undertaking (which includes the person having the management and control of the business carried on in an industrial undertaking) and secondly, an offence under the Ordinance has been committed in or in respect of such industrial undertaking.  On the first issue, it was important to identify correctly the industrial undertaking (that is, the place of work and/or the activities carried on in that place) of which the accused is alleged to be the proprietor.  On the second issue, it was necessary to specify the offence which it was alleged has been committed in or in respect of the industrial undertaking including the ingredients of the offence and the alleged offender.  Where s 6A was the alleged predicated offence, the proprietor who was the employer of the persons working in the industrial undertaking and the alleged breach of duty by this proprietor should be clearly stated.  It is only when the s 6A offence has been proved to have been committed (even if the proprietor who was the employer of the workers involved was acquitted) that the proprietor charged under s 13 can be guilty of a like offence.  I should note at this juncture that it is not a function of judicial review proceedings to decide the merits of the amendments sought by the prosecution but to consider the grounds of challenge against the magistrate’s decision.

28. In Paul Y, the Court of Final Appeal criticised the charges in that case because the case presented and the resultant conviction was wrong because it was framed as a combination of offences under s 6A and s 13(1)[14].

29. The importance of an amendment and the need to amend in the appropriate circumstances was stressed by Ribeiro PJ in Tse So So where he held that in order to ensure that charges were accurately stated at trial, magistrates had a general power to amend a defective information, exercisable before trial.  This existed as an implied ancillary power necessary for the effective exercise by magistrates of their summary jurisdiction and to safeguard the defendant from prejudice.  He added that the existence of this general power was presupposed by s 27, which specified how it was to be exercised in the particular circumstances contemplated.  Where a trial magistrate perceived a defect of form or substance in the information or a variance between its terms and the evidence adduced, s 27 imposed a duty to favour amendment over dismissal and to proceed to a judgment on the substantial merits and facts of the case, unless injustice would be caused.

30. Ribeiro PJ cited and endorsed the comments of Litton JA (as he then was)[15] in Commissioner for Labour & Anor v Jetex Hvac Equipments Ltd [1995] 2 HKLR 24 where he said:

“18. … ‘The whole tenor of the statute is to ensure that cases tried summarily in the magistrates’ courts should proceed expeditiously and unencumbered by technicalities.’”

Grounds for judicial review

31. A number of grounds for review were raised in support of this application for leave.  A new ground for review was raised at the outset of the hearing.  It was argued that the magistrate erred in granting the amendment because he did so under s 27 instead of the implied power as stated in Tse So So.  In argument, Mr Reynolds acknowledged that this had not been raised as an issue with the magistrate who had in fact been urged by the parties to make his decision as to whether or not to grant the amendment pursuant to s 27.  It was argued that s 27 applied to the specific circumstances there contemplated, that it could only be exercised by the adjudicating magistrate and that the magistrate was not the adjudicating magistrate as defined in Tse So So. 

32. I must say I find the basis of this argument on a review to be specious for a number of reasons but principally because counsel by their submissions had led the magistrate to make a decision under a provision that they now argue was wrong and which could have easily been resolved by revisiting the issue with the magistrate under the appropriate power.  A magistrate can consider an application for an amendment to a charge at any time and on more than one occasion.  It will depend on the circumstances of the case but the power is there for a magistrate to entertain such application for the effective exercise of the court’s jurisdiction.  It appears that Mr Reynolds accepted this as a means of resolving the issue which he himself suggested was appropriate.

33. Mr Reynolds argued that in accordance with Tse So So only the “adjudicating magistrate” could address the issue of an amendment under s 27 in the particular circumstances there contemplated, where it appeared that there was a defect of form or substance in the information or a variable between its terms and the evidence adduced.  It was held in Tse So So that an adjudicating magistrate under s 27 was to be taken to mean the magistrate who hears and determines the case[16].  Mr Reynolds argued that the magistrate was not the trial magistrate and therefore not the adjudicating magistrate.  The decision of Yau Yuk Lung is significant because it was held in that case that where an information charges a defendant with an offence which is held to be unconstitutional, there was plainly a defect in the substance of the information so that s 27 was engaged[17].  As pointed out in the judgment of Ribeiro PJ, with whom the other judges agreed, “amendment” by s 27(4) is given a very wide meaning and includes “the substitution of another offence in place of that alleged in the complaint, information or summons”.  As noted by Ribeiro PJ, in the context of a finding of unconstitutionality of an offence:

“65. … It would therefore in principle be open to the magistrate to amend the information by substituting an offence which raises no constitutional difficulties in place of the unconstitutional offence, provided that this causes no injustice and that the section 27(3) procedures are then followed. If this can be done, the substitution relates back to the time when the information was laid and if it would not have been time-barred at that stage, the substituted charge would not be treated as time-barred even if the substitution occurred well after expiry of an otherwise applicable time-limit, so long as the substituted offence arises out of the same (or substantially the same) facts as the offence originally charged[18].”

34. The point of this is that an adjudicating magistrate may deal with a defect in the substance or form of a complaint, information or summons at any time during the trial process, subject to the circumstances as stated in s 27.

35. A magistrate in any event has an implied power to amend a charge in the effective exercise by magistrates of their summary jurisdiction, and includes amending a defective information[19]. This issue could have been easily resolved by applying to the magistrate to make an amendment under the implied power or by applying to make an amendment to the adjudicating magistrate.  Although, it may be that the magistrate was the adjudicating magistrate dealing with a defect in the informations or summonses as part of the trial process.

36. It may be that the prosecution was seeking to prosecute each applicant for offences under ss 6A and 13(1) together within the one charge which as explained in Paul Y was a conflation of the two offence provisions which was wrong in law.  Although the circumstances of the case seem to indicate otherwise in that the employers were separately charged for offences under s 6A.

37. The prosecution argued that the offences would be known to law by averring in the charge the party that committed the offence under the Ordinance in or in respect of the industrial undertaking.  It was always the prosecution case as evidenced by the charges laid and the parties before the court in relation to the first two matters that Leighton and Gammon were the principals of the industrial undertaking where an offence under the Ordinance had been committed by the employer, being Long Fortune and Trevi Construction respectively, and in relation to the third matter that Leighton was a principal of the industrial undertaking where an offence under the Ordinance had been committed by the employer, being Gammon.

38. As already noted, the applicants argued before the magistrate that the informations as laid were a nullity in light of the decision of Paul Y but this argument changed complexion at the time of the application for review by arguing that the informations were not known to the law.

39. Ribeiro PJ addressed the argument against the applicability of s 27 in cases where a defect in an information may be so fundamental as to render it a nullity which was incapable of being used by amendment.  I set out in full Ribeiro PJ’s reasoning in dealing with this issue as it is relevant to the arguments advanced by Mr Reynolds for the applicants.  He said:

“78. In AG v Wong Lau trading as Kin Keung Construction & Engineering Co, Stock J (as he then was) sought in the context of section 27 to distil from English authorities (referred to below) the propositions inter alia that:

(1) A distinction is to be drawn between informations that are defective and those which are nullities.

(2) An information will be a nullity if:

(i) the statutory provision creating the offence has been repealed and not re-enacted; or

(ii) the statement and particulars of offence cannot be seen fairly to relate to, or be intended to charge, a known and subsisting criminal offence; or

(iii) in some other way, it is so defective that it cannot be cured. ...

12. Informations which are a nullity cannot be amended.

…

80. In formulating his categories of ‘nullity’, Stock J cites a number of English cases, which, it is true, do refer to certain indictments as containing defects which render them ‘nullities’. However, those authorities must be approached with great care. None of them was dealing with any enactment resembling our section 27, that is, a provision imposing a duty to amend as discussed above and conferring a power to amend which expressly includes substitution of the offence charged. And in none of them was the court concerned with the question whether the trial or appellate court was precluded from amending the relevant indictment or charge on the ground that it was so defective that it had to be treated as a nullity leaving nothing to amend.

81. Instead, in many if not all of them, any constraint on amendment was the constraint, recognized in the English case-law, against an appellate court amending the charge after the trial court had recorded a conviction, it being acknowledged that the defect could have been, but was not, cured by amendment prior to conviction below. Plainly, in such cases, it was not the seriousness of the defect, but the unwillingness of appellate courts to re-cast a defective charge after conviction, that prevented amendment. As noted above, appellate courts are not so constrained in Hong Kong in the section 27 context, they having adopted the practice of ordering a trial de novo on the amended charge where the power to amend is exercised on appeal. Given that, on English the authorities, the defective charge could not be cured by amendment on appeal, the point arising in some of the abovementioned cases was whether the defect was so serious as to render the indictment a nullity so as to exclude application of the proviso. The issues addressed in those cases were, in other words, quite different from those before this Court and arose in a very different statutory environment.

82. Given the overall scheme of section 27 and the great width of the power of amendment it confers, it is hard to conceive of a defect in an information which cannot in principle be amended, particularly by substitution of the offence charged.

(a) Stock J gives as his first example of nullity, a case where the statutory provision creating the offence charged has been repealed and not re-enacted. However, if section 27(4) is kept in view, in such a case the question is whether there exists an alternative offence under a valid enactment or at common law which would be disclosed on the evidence to be called and which could be substituted without injustice for the defective charge. Of course in any particular case, this may not be possible. But defects of this nature are clearly in principle capable of being cured so that the proposition that they result in a nullity cannot be accepted.

(b) The same applies to Stock J’s second example, involving a case where ‘the statement and particulars of offence cannot be seen fairly to relate to, or be intended to charge, a known and subsisting criminal offence.’ If the offence charged is not known to law, the curability of the information must depend, in the section 27 context, on whether a valid offence can be substituted without injustice and pursued on the available evidence. There is again no reason in principle why a defect of this particular type should brand the information a nullity.

83.  Indeed, it is hard to see what role there is at all for the notion of ‘nullity’ in section 27.  That provision creates a self-contained scheme which requires a defective information or one which is at variance with the evidence adduced to be dealt with either by amendment or by dismissal.  It prescribes amendment in mandatory terms if this can be achieved without injustice.  If not, section 27 itself stipulates that the information must be dismissed.  It is hard to see what purpose would be served by injecting the notion of ‘nullity’ into that scheme.  To the extent that the three cases referred to support the view that informations may be so defective as to constitute nullities incapable of being amended pursuant to section 27 (and only to such extent) they are, in my respectful view, wrongly decided and should not be followed.”

40. Ribeiro PJ explained that s 27 dealt specifically with the powers of the “adjudicating magistrate”, meaning the magistrate seised of the substantive trial, to deal with defects in the information.  I note at this juncture that is exactly what the magistrate did, in that he was seised of the case and addressed a defect in the informations as raised by the applicants.  Ribeiro PJ also explained that magistrates other than the trial magistrate have power to amend an information outside the confines of s 27. He noted that the prosecution could seek to amend an information in advance of the trial without relying on s 27, to charge a constitutionally uncontroversial offence, subject to general principles and the usual discretionary considerations[20].

41. Section 13(1) provides that when an offence has been committed in or in respect of an industrial undertaking the proprietor will be guilty of a like offence.  Under s 6A, a proprietor of an industrial undertaking is under a duty to maintain a safe system of work and commits an offence if certain specified requirements are breached.

42. You can have more than one proprietor of an industrial undertaking, and in such a case, if one committed an offence under the Ordinance, then by virtue of s 13(1) the other or others would be guilty of a like offence.  “Proprietor” is defined very widely and may concern many proprietors that may operate in an industrial undertaking[21].

43. It is clear in relation to each of the three cases that the prosecution was alleging that other proprietors (subcontractors) had committed offences under the Ordinance as seen by the s 6A offences that were laid against Long Fortune, Trevi Construction and Gammon respectively.  Accordingly, there seems to have been the foundation for the prosecution to amend the s 13(1) offences by averring the party that had been charged for offences under s 6A. It seems clear to me that the amended charges arose from the same facts or substantially the same facts as the original charges.  It was alleged in each case that Long Fortune, Trevi Construction and Gammon had committed an offence under the Ordinance in or in respect of the industrial undertaking[22].

44. The grounds for opposing the prosecution application to amend the charges before the magistrate are repeated as the grounds for judicial review.

45. The first ground was that the magistrate had no jurisdiction in the case and therefore had no jurisdiction to amend the charges.  There were two steps in the defence argument.  The first was that the offences were not known to the law relying on paragraph 91 of the concurring judgment of Gleeson NPJ in Paul Y.  Gleeson NPJ in that paragraph said:

“… The charges laid against the appellants under s 13 of the Factories and Industrial Undertakings Ordinance, Cap 59, alleged offences of a hybrid nature, conflating the provisions of ss 6A and 13, and failing to distinguish between the primary offence, under s 6A, and what might be called the derivative offence, under s 13, of which the primary offence is an element. In respect of those charges, the appellants were convicted of offences not known to the law, and their appeals must be allowed.”

46. The second step was that if the offences were not known to the law then the magistrate had no jurisdiction.  The defence relied on two Australian cases in particular, Davies v Andrews (1930) 25 Tas LR 84 and John L Proprietary Ltd v AG for NSW (1987) 163 CLR 508 (John L Pty Ltd).  These cases dealt with the law as it then stood in Australia and in relation to specific provisions that were under consideration.

47. Mr Reynolds in the course of argument referred to the Australian High Court decision in John L Pty Ltd where by majority of the court[23] it was held that the information in that case was defective because it failed to identify a material particular of the offence and could not be cured or overcome by any relevant statutory provision.  In that case, reliance was placed on s 6(1) of the Supreme Court (Summary Jurisdiction) Act which the court held did not apply.  It was a provision that was similar in effect to s 27 in that it provided that no objection could be taken to any alleged defect or a variance of its terms and the evidence adduced, but unlike s 27 it did not apply to “a complaint, information or summons”, but rather to an “order or warrant made or issued under section 4 or 5” and hence the court held it did not apply to an information[24].

48. As noted in John L Pty Ltd, the traditional function of an information was to found jurisdiction to deal with an alleged offence.  It was a requirement that an information should inform the court of the identity of the offence with which it is required to deal and provide the accused with the substance of the charge which he is called upon to meet[25].  This is important to ensure the proper and fair trial of the accused.  The law has developed and the emphasis is to seek to cure a defective information as long as no injustice is caused.  Even outside s 27, there is a general power to amend a defective information.  This was clearly stated by Ribeiro PJ in Tse So So:

“32. A general power to amend a defective information so as to ensure that the charges to be faced by the defendant at the trial are accurately stated is necessary to enable magistrates effectively to exercise their summary jurisdiction and to safeguard the defendant from prejudice. It may therefore properly be implied as a necessary ancillary power.”

49. The futility of this judicial review is highlighted by the applicants’ own argument.  The applicants argued that the magistrate was not the adjudicating magistrate and therefore had no power to make an amendment under s 27 to cure any defect in the information.  The answer to that proposition is simple.  Such an application can be made to the magistrate who is the adjudicating magistrate, that is, the magistrate who hears and determines the case.  Although in the present context, it may be that the magistrate who dealt with the amendment is the magistrate who is to hear and determine the case.  But this ground ignores the authority of Tse So So where it was held that magistrates have a general power to amend a defective information.

50. The second ground was that the magistrate had no power to amend the charges under s 27 because on its correct construction, it did not permit the court to amend the charges in the present case and substitute new charges.  This ground was in essence undermined by the new ground that the magistrate wrongly granted the amendment under s 27 instead of the implied power of amendment as stated in Tse So So, but I will address it in any event.  Whilst this argument centred on the construction of s 27, it was submitted on the authority of Davies that a statutory power to amend does not enable an information to be amended where the court has no jurisdiction because the original information disclosed no offence.  It seems that the situation in Hong Kong is covered by the implied power as stated in Tse So So and, in any event, may have been answered by the Court of Final Appeal in Poon Chau Cheong, where Lord Cooke of Thorndon NPJ, with whom the other members of the court agreed, held by reference to s 27 that it was not unfair to amend an information by substituting a lesser offence, which if laid as a fresh information at the time of amendment would be time‑barred, provided the new offence was based on the same or substantially the same facts and would not have been time‑barred when the prosecution was commenced[26].  Lord Cooke of Thorndon NPJ relied on a number of English cases which propounded this general principle in relation to amending an information[27].

51. The third ground was that even if s 27 gave the magistrate power to amend (now by reference to the implied power), he should have declined to grant the amendments on the ground that they were unjust within the meaning of s 27.  When the new ground was raised in relation to the magistrate wrongly amending under s 27 instead of under the implied power, I asked Mr Reynolds what additional grounds of injustice would apply.  He said the same grounds.  Putting aside the specific requirements under s 27, the test under s 27 and the implied power is virtually the same, whether the amendment could be made without injustice being caused.

52. The grounds on which the applicants submitted that injustice would be caused by the amendment were stated as follows.

53. First, it was argued that the amended charges were not lesser charges than those in the original information.  The applicants relied on Poon Chau Cheong but that case specifically dealt with whether amendment could be made to a lesser charge after the limitation period had expired.  Lord Cooke of Thorndon NPJ in holding that such an amendment could be made referred to and relied on cases where it was held that a magistrate had power to allow an amendment which had the effect of charging a different offence after the limitation period had expired, as long as the new offence arose out of the same or substantially the same facts as gave rise to the offence originally charged[28]. Lord Cooke of Thorndon NPJ also pointedly noted that the English courts had evolved a test virtually identical with that under s 27, namely whether the amendment could be made without injustice[29].

54. A number of points that can be made against the argument in the present context is that the magistrate was the adjudicating magistrate as defined in that he was addressing a defect in the informations, or if he was not the adjudicating magistrate, he had power to amend which allowed him to amend by charging a different offence arising from the same or substantially the same facts as the original offence.

55. In my view, it was open to the prosecution to apply for an amendment to aver the party that committed the alleged offence under the Ordinance for which the applicants were liable to be guilty for the like offence.  It was appropriate to charge the offence as it arose from the same or substantially the same facts as the original offence.  It was argued by Mr Reynolds that the original charge was conflating the offence provisions of ss 6A and 13 and failed to distinguish between the two offence provisions.  But that was what the amendment sought to correct and properly particularize the offence in light of Paul Y which reflected the prosecution case as the defendants for the s 6A offences in the three cases, Long Fortune, Trevi Construction and Gammon, were before the court, together with the applicants for the s 13(1) offences.

56. Secondly, it was argued that the amended charges were substantially different from those original charged.  The information was sufficient to invoke the jurisdiction of the court and the amendments made were founded on the same facts or substantially the same facts as gave rise to the original charges.

57. Thirdly, it was argued that the charges in the original informations were unknown to the law and bad in law.  Given the facts and circumstances of the case before me, the charges were curable by appropriate amendment.  In Paul Y, it was emphasized that the case there was not properly presented and the conviction was not properly obtained.

58. Fourthly, it was argued that the original informations were not adequate to ground jurisdiction.  In my view, from the facts and circumstances before me they were, notwithstanding the defect.

59. Fifthly, it was argued that the amended charges were out of time and statute barred.  The fact that particulars were needed and furnished after the time limited for commencing the prosecution was immaterial once the process was commenced within the time limit.

60. Sixthly, it was argued that to allow the amended charges would be to permit the prosecution unfairly to circumvent the immunity granted by the statutory limitation period under s 26.  Such an argument was rejected in Tse So So.  The issue is whether the amendment can be properly made which I have already addressed.

61. Seventhly, it was argued that the amended charges remained bad in law and unknown in law.  The amendments were sought by the prosecution on reliance of Paul Y and the defect was not incurable or incapable of amendment.

Appropriateness of judicial review proceedings

62. The question arose as to whether judicial review proceedings were appropriate to deal with the grounds raised by the applicants in relation to the magistrate’s decision.  Mr Reynolds relied on the comments of Hartmann J (as he then was) in Viva Magnetics Ltd & Ors v Secretary for Justice [2002] 3 HKLRD 571, but as I understand his comments he was not laying down a statement of principle and, in fact, expressed concern about granting leave in that case where alternative relief was available by way of appeal.  He made it clear that he had decided to consider the issue of the appropriateness of judicial review at the substantive hearing because it was accepted by the respondent that it was a proper case for judicial review.  The comments of Hartmann J were clearly made in the context of that case.

63. The scope for judicial review is limited where there is a right to a statutory rehearing.  It is established under law that where an applicant for judicial review has available to him an alternative remedy, the court will only allow a challenge by way of judicial review to proceed if that alternative remedy is somehow unsatisfactory.  This is so for sound policy reasons. Satellite litigation can frustrate the objectives of criminal justice and distort the trial process, and therefore ought rarely to be permitted.  It is important to note the observations of Stock JA (as he then was) in Yeung Chun Pong v Secretary for Justice (No 4) [2008] 2 HKC 46, who gave the judgment of the court:

“66. It is trite that judicial review is a remedy of last resort, and that where another adequate remedy is provided, that alternative should normally be used. That is not to say that where an alternative remedy exists – and the suggested alternative in this case is the appeal procedure provided by statute – judicial review is necessarily precluded. But the general principle is that:

‘… save in the most exceptional circumstances, that [judicial review] jurisdiction will not be exercised where other remedies were available and have not been used.’

per Sir John Donaldson M.R. in R v Epping and Harlow General Commissioners ex p. Goldstraw[30].

67. There is a clear public interest in ensuring that charges, once before a court, must be tried.  There is built into the system a host of safeguards to secure for an accused a fair, and an appropriately speedy, determination.  If those safeguards are not afforded in a particular instance, there is provided by the legislature a prescribed appeal mechanism.  That mechanism does not envisage interlocutory appeals or collateral challenges.  That is for very good reason, namely, that in practice most trials would constantly be interrupted to the disadvantage of effective decision-making and the disruption of the system as a whole.  Sometimes disruption to and delay of a particular trial caused by a judicial review application – or even by repeated applications in the one case – may derail a prosecution properly brought by the effect of that delay upon witnesses or their availability.  This disruption may find aggravated form as in the present case, where there is an ex parte application made for leave; leave is granted without hearing the prosecutor respondent; an application is then made to set aside leave; that is refused; there is an appeal from that refusal, an appeal that may find its way to the Court of Final Appeal and, if the leave is not disturbed, there is a judicial review and renewed appeals from whatever decision emerges therefrom; and whilst all this is going on, hearing dates for trial are repeatedly vacated.  The outcome is that unwarranted applications to stay proceedings combined with collateral challenges themselves run the risk of abusing the court’s process.”

64. As stated by Stock JA, there must be very good reason to interrupt the criminal processes by a collateral challenge where there is an appeal procedure to deal with it.  I have been informed that the applicants face other summonses of a similar kind to the ones in this case and this case is relevant to them[31]. I am also informed that there are a large number of other cases involving the issues the subject of these proceedings.  I trust by this judgment that these cases can now proceed promptly and not suffer the delay incurred in these proceedings.  Some of the issues that have been raised in the grounds of review require, in my view, as a matter of necessity, a factual context in order to be properly ascertained and evaluated.  This is best achieved after trial and the issue can be taken up on appeal if conviction has resulted and the issue is still one the applicants wish to pursue.

65. The prosecution sought in each case to amend the charge by particularizing the alleged offender under s 6A and the employer of the persons involved in the industrial accident.  This brought the offence in line with Paul Y and consistent with the prosecution case. 

66. In the first and second cases it was alleged by the prosecution that s 6A offences had been committed in or in respect of an industrial undertaking by Long Fortune and Trevi Construction respectively as the employers and that Gammon and Leighton, as proprietors of the industrial undertaking, should be guilty of like offences under s 13.  In the third case, it was alleged by the prosecution that s 6A offences had been committed in or in respect of an industrial undertaking by Gammon as the employer and that Leighton, as a proprietor of the industrial undertaking, should be guilty of like offences under s 13.

67. The factual context of the cases may be relevant to decide certain issues raised under the grounds of review in relation to the charges, and naturally this can only be done after trial and a full presentation of the case and the evidence from the parties. 

Conclusion

68. The combined authority of Poon Chau Cheong, Tse So So and Yau Yuk Lung put the matters raised by the applicants beyond question and accordingly, in my view, are not reasonably arguable.  In any event, the trial processes and any appeal thereafter provide ready and appropriate remedy for the matters raised by the applicants.  This is not a case warranting judicial review.

69. In light of the foregoing reasons, I refuse leave to the applicants to apply for judicial review.