THE QUEEN v. LEE KOU ON

IN THE SUPREME COURT OF HONG KONG

MAGISTRACY APPEAL NO. 969/90

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BETWEEN

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JUDGMENT

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Hon. Yang, C.J.:

1. The appellant was convicted by Miss Polly Lo, Special Magistrate, after trial of causing to be secured the means of escape in a premises by lock which in the event of fire or other calamity might render escape materially more difficult, under Sec. 9B (2) (a) (ii) of the Fire Services Ordinance, Cap. 95. His application for leave to appeal against his conviction was refused by me, and I now reduce into writing the reasons for my refusal.

2. At the hearing in the magistrate's court, the prosecution did not call any witnesses but produced a set of brief facts and a bundle of applications for registration of business which were agreed by the defence, and these became the evidence for the prosecution. The appellant elected not to give evidence and no witnesses were called on his behalf.

3. The facts, as set out in the learned magistrate's Statement of Findings, are as follows:

4. In her Statement of Findings, the learned magistrate made the following observations:

"The fact that the doors oh the floors in question were locked and there was an electronic button at the counter of the appellant's Sea Dragon Guest House that controlled the lock of those doors demonstrated that the appellant must have had the knowledge that the doors on those floors were locked and the electronic button at his counter controlled the locking and unlocking of the exit doors on the floors. The appellant being the manger of the Guest House must have had full control of the electronic button at his counter. Because the said exit doors were in a closed and locked position, residents of the building were deprived of free access to the exit doors unless they had keys or access to the electronic button at the counter of the appellant's Guest House."

5. The applications for business registration show that the Sea Dragon Apartment occupied the second floor of the building; there was on the same floor another apartment called the Majestic. On the third and fourth floors were a number of establishments in different names. All these establishments, whatever their names, were according to the brief facts agreed by the defence, occupied by the Sea Dragon, of which the appellant was the manager. The argument advanced on behalf of the appellant that Sea Dragon occupied only part of the second floor therefore cannot stand.

6. The next issue raised on appeal is that the facts do not disclose any mens rea on the part of the appellant. In determining whether or not the offence under S. 9B(2)(a)(ii) is one of strict liability, it is necessary to refer only to Lord Scarman's dicta in Gammon (Hong Kong) Ltd. v Attorney-General(1984) 2 All ER 503, at 508 e-g:

"(1) There is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence; (2) the presumption is particularly strong where the offence is 'truly criminal' in character; (3) the presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute; (4) the only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern; public safety is such an issue; (5) even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act."

7. Clearly S. 9B is concerned with public safety. I am content, for the purpose of this application, to rely on the passage cited above and rule that the offence now under consideration is one of strict liability.

8. Next, the issue which has to be addressed is the meanings of the word "causes" and the words "causes to be secured". The case of Alphacell Ltd. v Woodward (1972) AC 824 is in point. There the House of Lords was asked to decide the meaning of S. 2(1)(a) of the Rivers (Prevention of Pollution) Act of 1951, in particular the words "... if he causes or knowingly permits to enter a stream any poisonous, noxious or polluting matter". Lord Wilberforce said (at p. 834D - p. 835A):

        "The subsection evidently contemplates two things - causing, which must involve some active operation or chain of operations involving as the result the pollution of the stream; knowingly permitting, which involves a failure to prevent the pollution, which failure, however, must be accompanied by knowledge. I see no reason either for reading back the word "knowingly" into the first limb, or for reading the first limb as, by deliberate contrast, hitting something which is unaccompanied by knowledge. The first limb involves causing and this is what has to be interpreted.

 

        In my opinion, "causing" here must be given a common sense meaning and I deprecate the introduction of refinements, such as causa causans, effective cause or novus actus. There may be difficulties where acts of third persons or natural forces are concerned but I find the present case comparatively simple. The appellants abstract water, pass it through their works where it becomes polluted, conduct it to a settling tank communicating directly with the stream, into which the polluted water will inevitably overflow if the level rises over the overflow point. They plan, however, to recycle the water by pumping it back from the settling tank into their works: if the pumps work properly this will happen and the level in the tank will remain below the overflow point. It did not happen on the relevant occasion due to some failure in the pumps.

 

        In my opinion, this is a clear case of causing the polluted water to enter the stream. The whole complex operation which might lead to this result was an operation deliberately conducted by the appellants and I fail to see how a defect in one stage of it, even if we must assume that this happened without their negligence, can enable them to say they did not cause the pollution. In my opinion, complication of this case by infusion of the concept of mens rea, and its exceptions, is unnecessary and undesirable. The section is clear, its application plain. I agree with the majority of the Divisional Court, who upheld the conviction, except that rather than say that the actions of the appellants were a cause of the pollution I think it more accurate to say that the appellants caused the polluting matter to enter the stream."

9. Viscount Dilhorne explains the word "caused" as follows (at p. 839H - p. 840A):

       "What, then, is meant by the word "caused" in the subsection? If a man, intending to secure a particular result, does an act which brings that about, he causes that result. If he deliberately and intentionally does certain acts of which the natural consequence is that certain results ensue, may he not also be said to have caused those results even though they may hot have been intended by him? I think he can, just as he can be said to cause the result if he is negligent, without intending that result."

10. Thus, where a person intentionally does certain things which produce a certain result, then it can truly be said that he has caused the result: see p. 840C-D.

11. Lastly, Lord Salmon (at p. 847G) made the point that whilst the appellants there did not intend to cause pollution, they did intend to do the acts which caused it.

12. In the present case, the appellant was admitted to be the manager, it is therefore but common sense to draw the irresistible inference that he had intended the doors to be secured by lock, the locking being a prohibited act which was done on the actual authority, express or implied, of the manager or in consequence of his exerting the capacity which he possessed as manager to control or influence the acts of others: vide the Australian case of O'Sullivan v Truth snd Sportsman Ltd. (1957) 96 CLR 220, at 228, followed by the Privy Council in Attorney General of Hong Kong v Tse Hung-lit (1986) 3 All ER 173, at 176C.

13. If the appellant did cause the doors to be secured by lock, then again common sense dictates the conclusion that in the event of fire or other calamity, escape must be materially more difficult.

14. For the reasons stated above, the application was dismissed.