HKSAR v. GAMMON CONSTRUCTION LTD

HCMA 97/2019

[2021] HKCA 185

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MAGISTRACY APPEAL NO 97 OF 2019

(ON APPEAL FROM WKS NOS 802-804 OF 2016)

________________________

________________________

________________________

J U D G M E N T

________________________

The Court:

1.  The applicant applies, pursuant to section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, for a Certificate certifying that two questions of law of great and general importance are involved in the Judgment of this Court handed down on 7 September 2020 (“the Judgment”).  The parties have agreed that this application may be dealt with on the papers only.

2.  The two questions of law are:

(1)     Whether on the true construction of section 18 of the Factories and Industrial Undertakings Ordinance, Cap 59 (“Section 18”), does that section constitute a statutory defence, or does the section solely declare upon which party the onus of proof lies in those cases to which one or more of the exculpatory matters, as set out in Section 18, falls to be proved? (“Question 1”)

(2)     If the answer to Question 1 is that on a true construction Section 18 itself creates a statutory defence, as opposed to being merely declaratory in respect of the onus of proof, does that section, by necessary implication, operate to exclude the common law defence as articulated by the Hong Kong Court of Final Appeal in Hin Lin Yee v HKSAR (2010) 13 HKCFAR 142 (vide para 198(c)(i)), and Kulemesin v HKSAR (2013) 16 HKCFAR 195 (vide para 83(c))? (“Question 2”)

3.  These two questions lay at the heart of the appeal as it was argued before this Court[1] upon the reservation of the appeal to the Court of Appeal from the Court of First instance under section 118(1)(d) of the Magistrates Ordinance, Cap 227, and it is not profitable to repeat either the arguments or our decision. 

4.  So far as Question 1 is concerned, we do not regard the question as a reasonably arguable point of law of great and general importance.  The plain wording of Section 18 self-evidently provides for a statutory defence and is not a mere onus-bearing provision.  The matter has been put beyond doubt, on comparable provisions under the Health and Safety at Work etc Act, 1974 in the United Kingdom, by the speech of Lord Hope of Craighead in R v Chargot Ltd (trading as Contract Services) and others [2009] 1 WLR 1, with whom all other members of the House of Lords agreed, at [21].  Chargot Ltd has been applied by the Court of Final Appeal in HKSAR v Gammon Construction Ltd (2015) 18 HKCFAR 110, at [22] and [40].

5.  So far as Question 2 is concerned, the principles determining whether there is room for the common law defence in a statutory regime have been firmly established by the Court of Final Appeal in Hin Lin Yee v HKSAR (2010) 13 HKCFAR and Kulemesin v HKSAR (2013) 16 HKCFAR 195.  We have already addressed the argument[2] which the applicant now repeats.  Given that the law has been well-settled in this jurisdiction, we do not find the question posed to be one of great and general importance, nor do we regard it is one which is reasonably arguable.

6.  The application for a Certificate is refused.

[1] See paras 21-25 of the Judgment.

[2] See paras 30-41 of the Judgment.