HKSAR v. VW-VES (HK) LTD AND OTHERS

FAMC No. 69 of 2014

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 69 OF 2014 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 742 OF 2013)

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REASONS FOR DETERMINATION

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Mr Justice Fok PJ:

1. At the hearing, we dismissed this application for leave to appeal and indicated that we would hand down our reasons for doing so in due course, which we now do.

Background

2. The four applicants were convicted after trial[1], on 18 October 2013, of offences under (i) regulations 7J(1) and 19, (ii) regulations 18A(a) and 19, and (iii) regulations 18(1)(e) and 19 of the Factories and Industrial Undertakings (Lifting Appliances and Lifting Gear) Regulations (“the Regulations”).[2] The offences related to a lifting operation carried out at a construction site in Tuen Mun where a sludge treatment facility was being constructed. 

3. The 1^st applicant was the main contractor for the site and sub-contracted the construction works to the 2^nd, 3^rd and 4^th applicants, who formed an unincorporated joint venture for the project.  The lifting operation involved the use of a truck-mounted crane which was being used to lift a stack of wooden boards and battens, which were attached to the crane by two nylon slings hooked to the crane.

4. In convicting the applicants, the Magistrate[3] held, inter alia, that the Regulations created offences of absolute or strict liability; that the 1^st to 4^th applicants were each an owner of the lifting appliance and gear; and that, if the offences were not strict liability offences but admitted of a common law defence of honest and reasonable belief, that defence was established on the facts.

5. The applicants’ appeal to the Court of First Instance[4] was dismissed on 22 August 2014.  The Judge[5] upheld the Magistrate’s conclusion that the offences were ones of strict liability and rejected the applicants’ arguments that the Magistrate erred in finding each of the applicants to be the owner of the truck-mounted crane and sling and in failing properly to assess the individual role of the 2^nd, 3^rd and 4^th applicants, as opposed to the joint venture itself.  She also rejected the contention that the Magistrate erred in finding that the common law defence of honest and reasonable belief, if available, was not made out.

6. On 21 October 2014, the Judge certified two questions as points of law of great and general importance, namely:

“Question 2

Whether a joint venture could properly be the subject of prosecution for offences under the Regulations?

Question 3

Whether evidence that a joint venture is an “owner” within the meaning of the Regulations is, without more, evidence that each individual party to the joint venture is to the same extent an “owner” within the meaning of the Regulations?”

7. However, she declined to certify a third question as such, namely:

“Question 1

Whether the offences created by regs 7J(1), 18A(a), 18(1)(e) and 19 of the Regulations are offences of absolute liability or whether the offences admit of a defence of honest and reasonable belief which, if true, would have rendered the acts of the defendants innocent?”

The application for leave to appeal

8. Before this Committee, the applicants applied for leave to appeal to the Court of Final Appeal on the ground that points of law of great and general importance, namely Questions 1, 2 and 3 above, were involved in the appeal and also on the basis that substantial and grave injustice had been done to the applicants.

Question 1

9. The legal principles which apply in determining whether a statutory provision creates an offence of absolute or strict liability, or an offence admitting of the common law defence of honest and reasonable belief, are clear and well-settled in the Court’s respective decisions in Hin Lin Yee v HKSAR (2010) 13 HKCFAR 142 and Kulemesin v HKSAR (2013) 16 HKCFAR 195. 

10. The applicants accepted that the Court of Final Appeal has comprehensively set out the principles regarding absolute liability offences but contended that the Court should consider the application of those principles to the particular provisions of the Regulations under which they were prosecuted in the present case. 

11. Whilst the question of whether a statutory provision creates an offence of strict liability or admits of the common law defence may, depending on the circumstances, give rise to a point of law of great and general importance, we were satisfied that it does not in respect of the particular offences in the present case.  In our view, the Magistrate’s conclusion that the offences in question were ones of absolute or strict liability, based on her careful analysis of the Regulations and applying of the relevant principles, is plainly correct and we therefore declined to grant leave to appeal in respect of Question 1.

Questions 2 and 3

12. The Appeal Committee retains a discretion to refuse leave to appeal, notwithstanding the Judge’s certification of questions as ones of great and general importance[6].

13. In our view, leave to appeal should be so refused in respect of those two questions.  In the present case, the joint venture was not prosecuted for the offences and, instead, the 2^nd, 3^rd and 4^th applicants, as individual members of the joint venture, were prosecuted.  The question of whether the joint venture could properly have been prosecuted (Question 2) is therefore academic since, in the present case, the joint venture was not prosecuted.

14. On the other hand, if Question 2 were re-framed to ask whether, in the case of a joint venture carrying out work on a construction site, only the joint venture could be prosecuted to the exclusion of the individual members of such a body, then, in our view, the answer is clear that this is not the case.  While there may be questions as to whether an unincorporated association can be prosecuted for an offence, there is plainly no bar to the individual members of such an association being so prosecuted.  It is a necessary incidence of the nature of an unincorporated association that its members will be jointly and severally liable for its actions done within their authority[7].  Whether such liability can be established in any given case will, of course, depend on the evidence.

15. It is not clear that Question 3 arises in the present case.  The Magistrate did not find that each of the individual applicants was an “owner” within the meaning of the Regulations simply because the joint venture was such an “owner” (i.e. “without more”).  Rather, the Magistrate scrutinised the evidence to determine whether each of them was a “contractor who has control over the way any construction work which involves the use of the lifting appliance or lifting gear is carried out”[8] and concluded that it did[9].

16. In any event, as framed, Questions 2 and 3 are fact and case-specific and therefore neither poses a point of law of great and general importance.

The substantial and grave injustice ground

17. There were three respects in which it was contended that the applicants’ convictions give rise to substantial and grave injustice, namely the Magistrate’s alleged errors (1) in holding that the defence of honest and reasonable belief was not made out; (2) in failing to find that there was insufficient evidence that the 1^st applicant was an “owner”; and (3) in not rejecting the evidence of the prosecution witness (PW3) who compared the slings to the certificates produced in respect of them.

18. We were not persuaded to grant leave to appeal on the basis of any of these arguments.  As has been repeatedly said, the Court of Final Appeal does not operate as a second court of criminal appeal.  In order for an appeal to succeed on this ground, it must be shown that there has been to the applicant’s disadvantage a departure from accepted norms so serious as to constitute a substantial and grave injustice[10].

19. As to (1), this argument was necessarily advanced because, if the offences in question admit of the common law defence (see Question 1), it would only be if the defence were made out on the facts that the applicants would avoid liability for the offences.  In the light of the conclusion we reached regarding Question 1, this ground of appeal is academic.  In any event, we were satisfied that the complaint advanced on behalf of the applicants, that the Magistrate’s reasoning involved her requiring them to show direct supervision by each of them at the material time of the lifting operation, involves a mis-reading of the Magistrate’s reasoning.  The Magistrate was not stating a need for direct supervision but was instead simply referring to the lack of any substantive supervision or concrete checking system of the lifting operation as support for her conclusion that the common law defence was not made out. 

20. As to (2), it was contended on behalf of the 1^st applicant that it was not an “owner” because its contract was of a Build-Operate-Transfer nature and there was no evidence that it had involved itself with the “build” part of the contract.  However, we were satisfied that the Magistrate’s analysis of the evidence regarding the prosecution’s case that the 1^st applicant was an “owner” within the Regulations was sound and her conclusion that the 1^st applicant was “the contractor responsible for the construction site” was one she was properly entitled to reach[11].

21. Finally, as to (3), the complaint here was simply one regarding the Magistrate’s assessment of the evidence.  The Magistrate was alive to the alleged inconsistencies but was satisfied by PW3’s evidence that the seized slings he had inspected were not the same as those referred to in the certificates produced by the applicants.

22. In short, none of the arguments advanced involved any departure from accepted norms to the applicants’ disadvantage such as to constitute substantial and grave injustice.

Disposition

23. Accordingly, the application for leave to appeal was dismissed.