HKSAR v. ABLE ENGINEERING CO LTD

HCMA 597/2019

[2020] HKCFI 2476

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 597 OF 2019

(ON APPEAL FROM WKS 19678 OF 2018)

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J U D G M E N T

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1.  The appellant a company limited was convicted after trial of an offence under section 27(3) and 150 of the Public Health and Municipal Services Ordinance, Cap 132 (“PHMSO”), namely, that on 28^th August 2018 being the appointed contractor of the premises consisting of a building site at Construction of Subsidised Sale Flat Development at Texaco Road in which larvae of mosquito were found.

2.  The Deputy Magistrate Lo Chi Hung (“the magistrate”) sentenced the appellant to a fine of $5,000.  The appellant now appeals against conviction.

Summary of the Prosecution Case

3.  The prosecution case was not in dispute.  The appellant is the appointed contractor of the site Construction of Subsidised Sale Flat Development at Texaco Road (“the site”).  On 28 August 2018 at 10.15 am, a Pest Control Inspection team (“the team”) from the Food and Environmental Hygiene Department (“FEHD”) visited the site in order to conduct a search for the presence of mosquitos.

4.  During the inspection of the site, samples were taken from an area of accumulated water that was suspected to contain mosquito larvae. The samples were taken in the presence of a representative of the appellant.  Upon further inspection by the team, the sample was confirmed to contain mosquito larvae.

The offence

5.  The offence is one of strict liability.  The core issue at the trial was whether the appellant had made out the common law defence of honest and mistaken belief upon reasonable grounds in its failure to comply with the legislative requirement.

The defence at trial

6.  The defence at the trial was that the measures taken by the appellant to control mosquito breeding on the site had exceeded the weekly inspection programme published by the FEHD by conducting more frequent and regular inspections.  The anti-mosquito control system put in place was duly followed by the appellant through its employees both at the frontline and the management level.  It was submitted that all the steps taken by the appellant were sufficient to establish the common law defence.

The Magistrate’s findings

7.  In arriving at his conviction the magistrate found the presence of the larvae at the site must have been due to the negligence or omission on the part of the appellant’s employee or employees for failing to prevent water from accumulating.  He found that the appellant failed to:-

(i)     prevent water from accumulating and remove stagnant water in the open channel after a number of days of heavy rain and

(ii)     cover or erect a structure over the open channel to prevent water from accumulating.

8.  Applying HKSAR v Kier Hong Kong Limited HCMA 845/2006, the magistrate concluded the appellant could not avail itself to the common law defence where the prohibited circumstances are the result of negligent acts or omissions of a person or persons to whom a defendant has entrusted the task of ensuring that the law is complied with[1].  As such, the appellant was guilty as charged.

Grounds of appeal

9.  Mr Adrian Halkes and Shirley Hung counsel for the appellant put forward five grounds of appeal.  They can succinctly be put into three main grounds.  They are firstly the magistrate erred in finding the appellant’s employee(s) were negligent (the negligence ground).  Secondly, the magistrate erred in finding that the appellant had failed to cover the open channel where the sampling took place (the failure to cover the channel ground).  The third ground is that the magistrate erred in not finding that the appellant had satisfied the common law defence (the common law defence ground).

The negligence ground

10.  The appellant contends the magistrate erred in finding “negligence” on the part of an unspecified “employee or employees” of the appellant when no negligence was proven in evidence, no negligence was specified at trial and none was demonstrated on the part of any “employee” or “employees”.

The failure to cover the channel ground

11.  The appellant submitted the magistrate erred in finding that it was possible to erect a structure or cover over a channel where sampling took place in order to “improve the situation” and the appellant had failed to do so.  It was argued no evidence of such a possibility existed in the prosecution’s case.  This concept was not explored or ventilated when any defence witnesses were examined or cross-examined or at any stage of the trial as to the possibility of such, the costs of such, or any related practicalities, let alone efficacy of such.

Consideration

12.  The first question is whether the magistrate erred in finding the appellant’s employee(s) were negligent.

13.  Ms Lily Ho SPP submitted the prosecution does not have to establish any mens rea (whether negligence or omission) on the part of the employee or employees in order to prove its case as the offence in question is a strict liability offence.  Therefore, the prosecution did not have to allege any negligence or omission at trial.

14.  The magistrate said in his statement of findings at paragraphs 32 to 35.

32.    Defence Counsel submitted that the facts in Kier might be distinguished because there was no evidence of negligent acts or omissions in the instant case.

33.    As the evidence showed in this case, the day of the offence was a Tuesday and it had been raining continuously for 3 days on Saturday; Sunday and Monday.  There were no workers working on Saturday and Sunday.  DW1’s decision not to remove the accumulated water in the open channel on Monday was because it was still raining and no-one could logically be expected to clear water when it was raining.

34.    Focus has been placed on the explanation of not removing the water on Monday but obviously, there was something more the Appellant could have done in the circumstances to improve the situation such as covering the open channel with water-proof materials without having to incur great expenses in view of the size of the channel.  Despite heavy rain is foreseeable during the rain season, nothing at all had been done to stop water from getting into the open channel during the whole weekend when there was no worker around to check and take action if necessary.

35.    Defence Counsel asserted in his closing submission that total elimination of larvae was practically impossible because their presence was inevitable from time to time as they could appear within a matter of seconds.  This is only true if eggs have been laid and allowed to stay in the water for 2-3 days.  This ideal condition for mosquito larvae to hatch from the eggs can always be obviated by disallowing stagnant water to collect.  In the circumstances, the presence of the larvae at the Site must have been due to the negligence or omission on the part of the Appellant’s employee or employees for failing to prevent water from accumulating. (my own emphasis)

15.  The magistrate found the appellant negligent firstly, as it allowed water to accumulate in the channel by not removing the water for 3 days and secondly the appellant failed to cover the channel.

16.  Dealing with the first question: was the appellant negligent in allowing the accumulation of water for 3 days in the channel.  This should be considered in light of and in comparison to the life-cycle of mosquitoes.

17.  As stated in the publication Anti-mosquito Weekly Inspection Programme issued by the FEHD[2], mosquito eggs develop into adults in seven days and inspections should be undertaken weekly[3]. So it is this 7-day life cycle that needs to be broken in order for effective preventative measures.

18.  The appellant allowed the water to accumulate for 3 days that is from Saturday to Monday.  Clearly, removal of stagnant or accumulated water is one of the more important and effective measures for the prevention of mosquito breeding.  The appellant’s evidence is that the delay in removing the accumulated water was due in part to the heavy rain and in part to having no staff present over the weekend to undertake the task of removal.

19.  The appellant’s evidence which the magistrate did not reject was that there was a bi-weekly inspection with the officers from the Housing Authority (HA) on every Tuesday and Thursday to ensure that there was no garbage or accumulation of water for breeding of mosquitos.

20.  In addition to the bi-weekly inspection, the appellant would also conduct its own inspection every Monday, Wednesday and Friday to make sure that anti-mosquito works were properly carried out before the HA inspection.  All DW’s 1 - 3 would be involved in these additional inspections.

21.  For the prevention of mosquitos, there were different equipment and supplies maintained at the site such as fogging; larvicidal spray; mosquito sand; mosquito cake and LPG mosquito killing machine.

22.  Apart from the above, other mosquito control measures included delivering Toolbox training to the employees of the appellant and the sub-contractors who were responsible for executing anti-mosquito works and measures; posting relevant notices and work records at the site; and attending frequent and regular meetings on environmental issues with the site agents; site managers; sub-contractors; project managers and directors.

23.  Daily inspection was carried out by DW2 at the site with the assistance of other workers to ensure that there was no accumulated water or rubbish.  Anti-mosquito supplies had been used regularly.

24.  On the evidence before the magistrate, the fact that the appellant had not cleared the water for 3 days did not establish that the appellant was negligent through its employee(s).

The failure to cover the channel ground

25.  The appellant contends that the “possibility” of erecting a structure or covering the channel where the sampling took place was never raised at the trial.  The prosecution did not explore such a possibility via its own expert witness and did not lead any evidence as to the facts of the area in question as to practicality, practicability or efficacy of such an action.  No expert evidence was led as to the type of structure.  Moreover, it was never put to the defence witnesses at trial that a structure or cover could be erected, of what type, where and exactly how.

26.  Mr Halkes submitted that the magistrate was not entitled to conclude by drawing the irresistible inference from the primary facts adduced that the appellant could have improved the situation by possibly covering the channel.

27.  Ms Ho submitted that the trial magistrate was entitled to draw the inference and observe that something more could have been done to “improve the situation” such as covering the open channel with water proof materials and the appellant failed to do so.

28.  I accept the appellant’s contention that there were no facts or evidence before the magistrate to draw the only inference that the covering of the open channel with water proofing materials would have improved the situation.  This was not explored at trial.  The appellant was not given an opportunity to meet such an assertion.  If there were explanations why it may not have been possible the appellant was not able to speak to the reasons as to why.  Moreover, there was no evidence as to the efficacy of such a measure.

29.  The possibility of what could have been done was speculation, it was not properly grounded on a clear finding of primary facts. The magistrate was therefore incorrect to conclude that the presence of larvae at the site must have been due to the negligence on the part of the appellant’s employees because the extra measure of covering was not taken.

The common law defence

30.  The magistrate correctly referred to the offence being one of strict liability and the common law defence.  At paragraph 14 and 15 of the Statement of Findings he referred to the law:

“14. … However, this subsection is one of strict liability and the common law defence referred to in Attorney General v Fong Chin Yue and others, HCMA604/1994 is available to the Appellant, namely if ‘it, honestly and upon reasonable grounds, believed in the existence of facts which if true would make the act innocent’.

15. The burden is on the Appellant to prove to the required standard of balance of probabilities as outlined by the Court of Appeal in the case of Hin Lin Yee and HKSAR, FACC No.7 of 2009 under paragraph 96(c): ‘that the presumption has been displaced so that the prosecution need not prove mens rea but that the accused has a good defence if he can prove on the balance of probabilities that the prohibited act was done in the honest and reasonable belief that the circumstances were such that, if true, he would not be guilty of the offence (“the third alternative” which I have called the “defence approach”).’”

31.  The magistrate was alive to the issue whether the appellant had made out the common law defence.  At paragraph 31 of the Statement of Findings the magistrate referred to HKSAR v Kier Hong Kong Limited where the court held that the common law defence was not available where the prohibited circumstances are the result of the negligent acts or omissions of a person or persons to whom a defendant had entrusted the task of ensuring that the law is complied with.

32.  The magistrate found that the presence of the larvae at the site must have been due to the negligence or omission on the part of the appellant’s employee(s) for failing to prevent the water from accumulating[4].  As a result, he found the common law defence was not available to the appellant.

33.  As there was no evidence of the appellant’s negligence, the common law defence was available to the appellant.  The evidence before the magistrate was that the appellant had put in place on the site a detailed, ongoing compliance structure and a system that specifically addressed the issue of the risk of mosquito breeding and water controls.

34.  The appellant’s case was that it was of the belief that a control system was in place and being conducted, manned and equipped in a manner that was totally consistent with the HKSAR Government recommended practices and in fact exceeded such.  In support of this the appellant referred to the admitted facts between the prosecution and the appellant that the FEHD has visited the site on a total of 40 occasions between May 2017 and July 2018 and none of the said visits resulted in any prosecution.

35.  The reasons of the appellant’s honesty of belief was made clear at the trial.  There was unchallenged evidence that the appellant did hold such honest belief for good reason that the anti-mosquito breeding water control measures were being conducted and the HKSAR Government published recommendations were being complied with and exceeded.  The magistrate did not reject the appellant’s belief.  There was no evidence that the reasons for forming of the belief were in anyway flawed or inadequate.

36.  In the circumstances, the appeal is allowed and the conviction is quashed.