R. v. NEW BEST RESTAURANT LTD.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 448 OF 1996

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J U D G M E N T

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1. The appellant, New Best Restaurant Limited (New Best) was convicted before a magistrate of a summons under section 14(1) and section 40(1) of the Buildings Ordinance, Cap. 123. The particulars are that:

"on or about 1st August 1994 at 1/F, 12 Sai On Street, Aberdeen, Hong Kong, New Best Restaurant Limited did commence or carry out building works without having first obtained from the Building Authority his approval in writing of documents submitted to him in accordance with the regulations and his consent in writing for the commencement of the works shown in the approved plan."

Section 14(1) reads:

"Save as otherwise provided, no person shall commence or carry out any building works or street works without having first obtained from the Building Authority -

(a) his approval in writing of documents submitted

to him in accordance with the regulations; and

(b) his consent in writing for the commencement of the building works or street works shown in the approved plan."

2. Section 40(1) provides for the penalty for the contravention of section 14(1).

3. The summons was consolidated and heard together with three other summonses against the sub-contractor for the demolition work and two workers of the sub-contractor who carried out the work. New Best was the 4th defendant at trial and the only defendant appealing against conviction.

4. The facts were that in or about May 1994, New Best commenced a renovation project with a budget of around $10 million. At a late stage of the project, it was decided to demolish a fish tank on the first floor and to build a new one on the ground floor. The tank had a size of 0.9m (width) x 4.5m (length) x 2.2m (height) and weighed 4,900 kilogrammes or 10,780 pounds when it was 75% filled up with water. It was situated partly inside the building and partly protruded outside the building through the external wall of the building. The part protruded outside the building was sitting on the building's canopy. In the course of the demolition work, the canopy and the tank fell onto the street.

5. The magistrate found that the demolition of the fish tank was "building works" within the meaning of s.14(1) and it was not exempted under s.41(3). The undertaking of such work required the approval of the Building Authority and no approval had been given. "Building works" is defined in s.2 to include

"any kind of building construction, site formation works, ground investigation in the scheduled areas, foundation works, repairs, demolition, alternation, addition and every kind of building operation, and includes drainage works."

6. He also found that New Best was directly concerned with the work and was therefore also liable by virtue of s.40(5) because although they were aware that the tank would involve some structural matters, nevertheless permitted work to be carried out. The magistrate was satisfied that section 14(1) created an offence of strict liability. Section 40(5) provides:

"Any person, being a person directly concerned in or with any building works or street works, who permits the commission of any offence specified in this section shall be deemed to be guilty of such offence and shall be liable to the penalty prescribed therefor."

7. The appeal raises several issues. First it was submitted on behalf of the appellant that the magistrate erred in finding that the fish tank formed part of the structure of the building, the demolition of which would otherwise constituted "building works" as defined under section 2 of the Ordinance. Second, it was further contended that for a person to be held liable under s.40(5), he must be (a) directly concerned in or with any building works and (b) has permitted the commission of any offence specified under s.40.

Was the fish tank a structural part of the building?

8. Mr. Gartan, a senior structural engineer of the Buildings Department of the Hong Kong Government was called as an expert witness. He gave evidence to the effect that the canopy was a structural member of the building and the demolition of the fish tank did involve some structural matters which required approval before commencement of work and the work was not exempted under s.41(3). He went on to say that the size, weight and manner of how it was erected would not affect his view that the works was not so exempted. It was with this latter part of his opinion that the magistrate took issue. Following the judgment of Bewley J. in Good Think Consultants Ltd. v. Attorney General, MP No.810 of 1994 (unreported), the magistrate considered that whether certain works involving the structure of a building depends on its own facts and it is a question of evidence and of degree. Size, weight, manner of how it was erected, duration, degree of fixation and materials used are factors to be taken into account. I agree.

Was the appellant directly concerned in or with the building work?

9. It has never been disputed that New Best was the occupier of the premises in question and had engaged Hang On Transportation Company to carry out building works in that premises. It was submitted on behalf of New Best that the appellant was not a "person directly concerned in or with" the building works since New Best did not have control over the manner in which Hang On carried out the demolition works. Counsel relied on Gammon Ltd. v. Attorney General of Hong Kong [1985] 1 A.C.1 and argued that for a person to be directly concerned in or with any building works he must have control over the manner in which the works are being carried out. In Gammon, Lord Scarman, when considering s.40(2B), said at p.19:

"... Their Lordships are by no means certain that a labourer on site could be described as a person directly concerned with the manner in which works are carried out on site: for he has no control. But if he is, it has to be shown under [s.40(2B)(a) or (b)] that he bears (or shares) responsibility for determining the manner in which the works are carried out. The purpose of the provision is to prevent persons who have the power of decision, whoever they may be, from choosing and putting into effect a manner of carrying out the works which is likely to cause risk ... No offence can be committed save by one who bears (or shares) responsibility for deciding the manner in which the works are to be carried out."

10. In this case, New Best's role was not so much concerned with the manner of how the demolition work of the fish tank was carried out, the more important question to be asked is whether New Best was under a duty to ensure that approval and consent were obtained for carrying out the work. In my judgment, New Best was under such a duty. There is evidence that approval from the Public Works Department was applied for and given when the fish tank was first built in 1984. New Best clearly had the power of not to allow work to proceed or continue if the manner of carrying out the work was likely to cause risk. The management of the restaurant was well aware that workers had been discharging water and using hammers to break the tank.

Did New Best permit the commission of the offence, i.e. was mens rea required for the commission of the offence?

11. The magistrate ruled that s.14(1) created an offence of strict liability. It was submitted that the prosecution had to prove that New Best was aware of absence of approval or consent from the Building Authority. A passage of the judgment of Lord Scarman in Gammon is apposite to the issue under consideration. At p.14 it was stated:

"Their Lordships turn to consider the purpose and subject matter of the Ordinance. Its overall purpose is clearly to regulate the planning, design and construction of the building works to which it relates in the interests of safety. It covers a field of activity where there is, especially in Hong Kong, a potential danger to public safety. And the activity which the Ordinance is intended to regulate is one in which citizens have a choice as to whether they participate or not. Part IV (s.40) of the Ordinance makes it very clear that the legislature intended that criminal sanctions for contraventions of the Ordinance should be a feature of its enforcement. But it is not to be supposed that the legislature intended that any of the offences created by the Ordinance should be offences of strict liability unless it is plain, from a consideration of the subject matter of the Ordinance and of the working of the particular provision creating the offence, that an object of the Ordinance, e.g. the promotion of great vigilance by those having responsibility under the Ordinance, would be served by the imposition of strict liability."

12. Building works such as demolition of the fish tank is undoubtedly a potential danger to public safety that calls for the promotion of greater vigilance by those having responsibility under the Ordinance. The offence therefore falls within the category of strict liability.

13. The appeal is dismissed.