YIU WING CONSTRUCTION CO. LTD. v. HKSAR

FAMC No. 15 of 1999

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 15 OF 1999 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 1201 OF 1998)

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D E T E R M I N A T I O N

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Mr Justice Ching PJ:

1. The applicant was a construction site controller which was convicted of an offence under section 38A(2) of the Immigration Ordinance, Cap. 115. That subsection provides that

"Where it is proved that a person to whom section 38(1) applies was on a construction site, the construction site controller of that construction site commits an offence and is liable to a fine of $350,000."

Section 38(1) of the same Ordinance is well known and provides, for the purposes of this application, that it is an offence for persons who may not land in Hong Kong without permission to do so or to remain without the authority of the Director of Immigration or other designated officers of his department. Once the relevant facts are proved the only defence available to a charge under section 38A(2) is contained in section 38A(3) which provides that

"It is a defence in proceedings for an offence under subsection (2) for the person charged to prove that he took all practicable steps to prevent persons to whom section 38(1) applies from being on the construction site."

An appeal to the Court of First Instance failed and the applicant now applies to this Committee to certify a question under section 32(2) of the Court of Final Appeal Ordinance, Cap. 484, and for leave to appeal.

2. The question for which certification is sought is not set out in the summons. It is set out only in the skeleton argument as being "In what circumstances and to what extent may the Court properly exercise its power to restrict the calling of expert evidence by the defence to prove a statutory defence." The application for leave to appeal sets out two matters upon which it is said that the Court of First Instance erred as a matter of law. The first is that that Court upheld the Magistrate's ruling that the question of whether all practicable steps to prevent the relevant persons from being on the construction site was a question of fact not amenable to expert evidence. It is said that this was wrong, that on the authority of R. v. Shun Hing Construction and Engineering Co., Ltd., (1993) 1 HKCLR 69 the requirement was not to take steps to make the site a closed camp and that the Court was wrong to accept that the Magistrate's criticisms of the security system were based on the evidence before him. It is only necessary for us to say that the words "all practicable steps" simply mean what they say as laid down in Shun Hing (supra). Clearly it is a question of fact not amenable to expert evidence. It is, as the Judge below said , one where no special knowledge or question of science is involved. Nor do we agree that the Magistrate's criticisms of the security system were based on anything other than the evidence before him. They were amply justified.

3. The second argument advanced concerns the qualifications of the person whom it was proposed should be called as an expert witness. Since we find that the sole question was not one amenable to expert evidence this does not arise.

4. We decline to certify the question posed to us. This application is dismissed with costs.