HKSAR v. PAT KIM POR

HCMA338/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 338 OF 1999

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J U D G M E N T

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1. The Appellant was tried on one count of permitting the employment on a licensed premises between the hours of 6 am and 10 pm any person under the age of 18 years without the written permission of the Liquor Licensing Board, contrary to Regulation 29(1)(c) of the Dutiable Commodities (Liquor) Regulations made under Dutiable Commodities Ordinance, Cap.109, Laws of Hong Kong.

2. The particulars of the offence stated that the Appellant on 27th September 1998 at 1/F, 211 Portland Street, Mongkok, Kowloon in Hong Kong, which was a liquor licensed premises, being the licensee of the premises, permitted the employment of Cheung Choi Wan, who is under the age of 18 years, namely, at the age of 16 years and 5 months, between the hours of 6 am and 10 pm on or about the licensed premises without the written permission of the Liquor Licensing Board. The Appellant pleaded not guilty to the offence and was convicted after trial. The sentence imposed was a fine of $25,001. The Appellant sought to appeal on both the conviction and the sentence.

3. At the trial, the Appellant was legally represented. The prosecution had called a total of three witnesses. It appeared that the gist of the prosecution's case was not really in dispute. Defence Counsel made a half way submission but was rejected by the trial Magistrate who found a case to answer. The Appellant elected to give evidence. Having heard further submissions by Defence Counsel, the trial Magistrate convicted the Appellant.

4. The facts of the prosecution's case had been clearly stated in the learned Magistrate's Statement of Findings and I do not consider it necessary to recite them here. Suffice to say that the Magistrate had made the findings that the Appellant had not applied for the written permission of the Liquor Licensing Board; that PW1 was under 18 years on the day in question; and that she was employed on the premises in question between the hours of 6 am and 10 pm. The Magistrate also accepted the evidence of PW1, PW2 and PW3 as being true. These can be seen at p.2 of the Magistrate's Statement of Findings. Further at p.3 of his Statement of Findings, the Magistrate made the following observations :

"In the course of the trial I was referred by the prosecutor to the case of A.G. v. Ng Chung Hing [1990] 2 HKC in which Duffy J. ruled that an offence under reg.29(1)(c) of the Dutiable Commodities (Liquor) Regulations was one of strict liability. ..... In the absence of any other authority to the contrary of which I was aware I considered myself bound by this decision. I refer to page 5 of the report line N : 'The licensee is responsible for all acts committed either by himself or his employees'. I found all the elements of the offence proved beyond reasonable doubt and I convicted the Appellant."

5. At the hearing of the appeal, Defence Counsel submitted that although the offence was a strict liability offence, the Magistrate should have considered the common law defence available as stated in the authority of A.G. v. Fong Chin Yue & Ors [1995] 1 HKC 21. The same principle was referred to in Uniglobe Telecom (Far East) Limited v. HKSAR [1999] FACC No.5 16. However, the Magistrate seemed to have disregarded this matter.

6. To illustrate his point, Counsel for the Appellant had referred to the transcript of the trial. What had taken place was that after the close of the prosecution's case, Defence Counsel informed the Magistrate that he had a no case submission to make. The Magistrate enquired whether it would be on the point of "permitting". It seemed that Defence Counsel was indeed going to raise that particular point. However, when the prosecutor produced the decision by Duffy J. in Ng Chung Hing [1990] 2 HKC 389, the attention of the Magistrate and Defence Counsel turned completely to this case which decided that the offence in question was one of strict liability.

7. The Magistrate and Defence Counsel had then entered into a rather lengthy discussion about the impact of the case. In the exchange, the Magistrate was trying to point out, albeit implicitly, that there was really no defence. It seemed that Defence Counsel also thought it was a fatal point. At the end, Defence Counsel said :

"I am perhaps minded that the court should hear from the Defendant, at least very briefly."

Then the Magistrate made this observation "If you feel you want to call the Defendant anyway, then I will rule a case to answer now and you can simply call him and put him in the box". After Defence Counsel said that he assured the Court it would be brief, the Magistrate announced the ruling that there was a case to answer. The Appellant then proceeded to give evidence.

8. Apparently, even before the ruling of a case to answer, both the Magistrate and Defence Counsel had already formed the view that there could be no defence and that a conviction seemed inevitable. However, from the authorities cited, it does appear that even for strict liability offences, it would be a defence for an accused to prove, on the balance of probabilities, that he/she had honestly held, upon reasonable grounds, a belief in the existence of facts which, if true, would make his conduct innocent.

9. In relation to this, Counsel for the Respondent had argued that such defence was not raised during the trial and that the trial Magistrate should not act in the role of Defence Counsel. Although it is correct to say that the Magistrate should not act as Defence Counsel, it is a different matter when the Magistrate actively indicated to Defence Counsel that there could be no defence to a strict liability offence. Apparently the Magistrate had already made up his mind to convict even before the Appellant gave evidence.

10. The Respondent also argued that the Magistrate had no evidence before him as to what facts the Appellant believe in, not to mention whether it was honestly held on reasonable grounds. I am not sure whether it is entirely correct to say that. In the Magistrate's Statement of Findings at p.2, it was pointed out that he had a reasonable doubt as to whether the Appellant did know as a fact that PW1 was employed on the premises in question at the date and time set out in the charge. Had he been aware of this defence, it is not clear what other findings he would have made in relation to the Appellant's knowledge and belief. It is true that the Magistrate did say he took the view that the Appellant had reason to suspect the existence of the circumstances giving rise to the offence and could, by the exercise of reasonable supervision and reasonable diligence, have prevented the offence from occurring. However, the Magistrate's analysis on this point came up only when he was considering what sentence to impose rather than whether the offence was proved.

11. Having considered the circumstances, I consider that there was a material irregularity in the trial. The Magistrate's views expressed before the ruling of a case to answer might have effectively precluded a possible defence. Furthermore, it was not clear whether he had properly evaluated the defence evidence. In the circumstances, I cannot say that the conviction is safe and satisfactory.

12. I shall therefore quash the conviction and set aside the sentence.