THE QUEEN v. CHENG PAK-HOI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 621 OF 1985

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BETWEEN

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JUDGMENT

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1. The Appellant was charged "for that [he] ..... being the owner & person in charge of works of a vessel ...... did cause a mixture containing oil to be discharged from [it] into the waters of Hong Kong contrary to section 46 of the Shipping & Port Control Ordinance, Cap. 313."

2. He pleaded not guilty but was convicted after trial in the Magistrates Court.

3. Section 46 of the Shipping & Port Control Ordinance provides as follows :-

"46    (1) If any oil or mixture containing oil is discharged into the waters of Hong Kong, then the following commit an offence --

 

(a) the person by whom the oil or mixture containing oil is so discharged or caused to be discharged; and

 

(b)    whether or not the person referred to in paragraph (a) has been charged with an offence

 

4. An allegation that a person has caused a mixture containing oil to be discharged into the waters of Hong Kong is an allegation that he has committed an offence by virtue of the provisions of paragraph (a). The inclusion in the statement of that offence of particulars regarding the source of the discharge and the defendant's relationship to that source does not alter the intrinsic nature of the charge. Such particulars are no more than surplusage. Proof that a defendant was the owner for a vessel from which such a discharge emanated might often be cogent evidence in establishing that he caused the discharge but the source of the discharge and the defendant's relationship to that source are not constituent elements of the offence committed by those who fall within the purview of paragraph (a). Consequently, if the allegation is that the defendant is that type of offender, then proof that a vessel was the source of the discharge and that the defendant was the owner of the vessel is not sufficient if the whole of the evidence still falls short of establishing beyond a reasonable doubt that he in fact caused the discharge.

5. If the prosecution seek to prove that a person is an offender by virtue of the provisions of paragraph (b) the charge should allege that he was the owner of a vessel from which oil or a mixture containing oil was discharged into the waters of Hong Kong. Proof of such a discharge from a vessel of which the defendant was the owner casts upon the defendant the onus of proving the matters mentioned in sub-paragraph (ii). Failure to prove those matters would result in his conviction whether he actually caused the discharge or not.

6. It is always important for a defendant to know with precision what the prosecution is alleging and seeking to prove so that he is given the opportunity to meet the case. Whilst an owner should know that he is criminally responsible for the act of another where that other's act causes such a discharge from his vessel into Hong Kong waters, he is nevertheless entitled to take the position that if the prosecution allege that he himself caused the discharge then he need prove nothing if the prosecution fails to establish the truth of that allegation. If, however, the charge makes it clear that his criminal responsibility for the discharge is to be proved by showing that he falls within the category of offenders under paragraph (b), then he knows that, once the discharge from a vessel of which he is owner is proved, he must then prove the matters mentioned in sub-paragraph (ii) in order to avoid conviction.

7. So, although an owner is always criminally responsible where the discharge is from his vessel whether or not he caused the discharge, there is, nevertheless, an important procedural consequence for him dependent upon whether he is alleged to be an offender by virtue of the provisions of one paragraph or the other.

8. Here, having been charged as a paragraph (a) offender he was informed that the prosecution was seeking to prove that he caused the discharge. He was, therefore, told that the prosecution was going to carry the whole burden of proof, that he was not going to be put to proof that the discharge "was caused as mentioned in sub-paragraph (ii)". Accordingly, in the absence of any amendment of the charge, he was entitled to an acquittal when the evidence failed to prove that he did cause the discharge.

9. The prosecution argued that although the evidence did not show that the Appellant caused the discharge -- it was common ground that the Appellant was abroad at the time of the discharge and may have been unaware of the cause -- nevertheless he was by law the cause of it because the Ordinance made an owner "the person in charge of works" on the vessel whether he was in fact in charge or not. This argument was the foundation for the surplusage in the charge, namely, "being the owner & person in charge of works of a vessel". The provision which includes an owner within the definition of "person in charge of works" is section 36. That section, however, applies the extended interpretation of the phrase only to its usage in provisions within Part V of the Ordinance. Section 46 is within Part VI.

10. In my view the appeal must succeed. The conviction is quashed.