HKSAR v. KIER HONG KONG LTD

HCMA845/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 845 OF 2006

(ON APPEAL FROM ESS 825 OF 2006)

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J U D G M E N T

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1. The appellant appeals against its conviction by Mr Winston Leung at Eastern Magistrate’s Court on 31 July 2006 of an offence under section 27(3), Public Health and Municipal Services Ordinance, Cap. 132, namely, that it was the appointed contractor of a building site in which larvae of mosquitoes were found in an accumulation of water. 

2. The appellant was the appointed contractor of the site identified as “Reconstruction of Causeway Bay Flyover and Associated Widening of Victoria Park Road”.  On 13 July 2005, a team of officers from the Food and Environmental Hygiene Department visited the site.  At the site building materials were stacked under layers of nylon sheets.  An officer found a partially covered pool of stagnant of water on a nylon sheet.  In that pool of water were the larvae of mosquitoes. 

3. The sample collected at the site that day was subsequently examined by a health inspector of the Food and Environmental Hygiene Department who confirmed that it contained the larvae of culicine mosquitoes. 

4. At the time of the alleged offence, section 27(3) of the Public Health and Municipal Services Ordinance, Cap. 132 was in the following terms :

“Where, in any accumulation of water on any premises, larvae or pupae of mosquitoes are found, the occupier of such premises or, where the occupier is absent from Hong Kong or cannot be readily found or ascertained by the Authority, the owner thereof or, where the premises consist of a building site or a building under construction, the appointed contractor in respect of the site, shall be guilty of an offence.”

5. The offence was punishable by fine. 

6. The appellant’s first ground of appeal is that the magistrate erred in finding, by inference, that the larvae were alive at the time they were located when there had been no evidence as to their motility or other evidence that established they were alive. 

7. The magistrate made no reference to the motility of the larvae in his Statement of Findings.  He simply stated that the larvae of mosquitoes had been found in the pool of water, which was the unchallenged evidence that he had received from the prosecution.  There was no need for the prosecution to adduce further evidence of the fact they were alive or for the magistrate to make an express finding to that effect.  It was implicit that they were alive from the fact that they were described as larvae.  A “larva” is defined in the New Shorter Oxford English Dictionary as “an insect in a state of development (displaying little on no similarity to the adult) lasting from the time of its leaving the egg until its transformation into a pupa”.  If what had been found by the officers were the dead remains of larvae they would no longer have been larvae.

8. The remaining grounds of appeal, although expressed in varying ways, all turn on the question of what defence, if any, is available to an appointed contractor upon whose site larvae are found in an accumulation of water and whether the magistrate properly evaluated the evidence. 

9. The appellant’s case at trial had amounted essentially to a submission that the procedures implemented by the appellant had exceeded the Food and Environmental Hygiene Department’s own recommendation of an inspection every seven days by instituting inspections every three days and that, by reasons of that matter and the information from its staff and records, the appellant company would have been in no doubt, for good and sufficient reason, that the legislation was being complied with, and would therefore have established what was, described as “a common law defence”.  Counsel for the appellant concluded his submission by submitting that the steps taken by the appellant were sufficient to establish “the common law defence of due diligence”.

10. The evidence adduced by the appellant had included evidence of the training of Mr Lai Yue Bun (DW3), the employee responsible for anti-larvicidal spraying at the site, in mosquito elimination, a pamphlet issued by the Food and Environmental Hygiene Department entitled “Let’s Remove Stagnant Water.  Eliminate Mosquitoes for Healthy Living” which recommended the adoption of a weekly anti-mosquito inspection programme (exhibit D11), evidence that at least from June 2005 the appellant had increased the frequency of site inspections and spraying of insecticides to three times a week, a monthly mosquito control report for July 2005 (exhibit D14) which indicated, inter alia, that on 12 July 2005 stagnant water had been removed from the site and larvicide applied, and Construction Site Daily Cleaning Checklists (exhibit D7) which, inter alia, bore a “tick” in the “satisfactory” column against “Removal of Stagnant Water” in respect of 12 July 2005. 

11. In his Statement of Findings, the magistrate referred to the defence as being “the common law defence that reasonable efforts had been made to comply with the law”.  It appears that what he may well have had in mind was defence counsel’s concluding submission that defence had made out “the common law defence of due diligence”.

12. The magistrate referred to the evidence he had received of the appellant’s systems to prevent the breeding of mosquitoes at the site, and the training provided.  He found that the advice in the Food and Environmental Hygiene Department’s pamphlets was directed at preventing mosquitoes rather than larvae or pupae which are the subject matter of section 27(3).  He found that the presence of larvae can only have been brought about through “lack of diligence and conscientiousness” on the part of Mr Lai Yue Bun (DW3), who was the employee responsible for the spraying of larvicidal oil at the site, and that therefore the appellant had failed to establish “the common law defence”. 

13. There was no evidence that the appellant was misled by the Food and Environmental Hygiene Department’s pamphlet into believing that weekly inspection would remove the possibility of larvae being present on its construction site.  The pamphlet (exhibit D11) itself draws attention to the fact that an appointed contractor would be guilty of a criminal offence if larvae were found on the site and indicates that it takes two to three days for mosquito eggs to become larvae.  Indeed the evidence of the appellant’s safety officer, Law Kwok Yam (DW2), was that in his experience larvae could develop within one day of eggs being laid.  While the appellant’s recently instituted three-day inspection regime would not have been sufficient to prevent the development of larvae if they could hatch within one to two days of eggs being laid the mosquito prevention checklist (D14) and daily cleaning checklist (exhibit D7) indicated that there had been some sort of inspections on 12 July 2005, the day before the Food and Environmental Hygiene Department’s officers’ visit.

14. In this appeal Mr Halkes for the appellant concedes that the presence of larvae at the site must have been due to the negligence of the appellant’s employee or employees.  Indeed that was the conclusion of Mr Book Kin Man (DW1), the appellant’s employee in-charge of the construction site.

15. It is common ground in this appeal that section 27(3) is concerned with an issue of public concern and public safety, and that the prosecution do not need to establish any mens rea on the part of a defendant in order to prove its case in a prosecution for an offence under the subsection.  Not only is the subsection concerned with an area of public concern and public safety, but it is regulatory in nature rather than “truly criminal” and contravention is only punishable by way of fine. 

16. A defence of due diligence is only available to a regulatory offence, such as this, where the wording of the ordinance allows for such a defence (see HKSAR v. Leighton Contractors (Asia) Ltd [2000] 1 HKLRD 787 at 793, per Suffiad J).

17. There is no such wording in relation to the offence created by section 27(3) of the Public Health and Municipal Services Ordinance, Cap. 132.  Indeed Mr Halkes himself now concedes that due diligence is not in itself a defence.  He argues however that the court should have regard to the appellant’s due diligence in order to come to the conclusion that the appellant had made out the so-called “common law defence” referred to in Attorney General v. Fong Chin Yue and others, HCMA604/1994 that it, honestly and upon reasonable grounds, believed in the existence of facts which if true would make the act innocent.  

18. It follows that the magistrate erred in so far as he may have suggested that there was a defence of due diligence.  However bearing in mind his unchallenged finding that the offence occurred as a result of the default of the appellant’s employee, I am satisfied that his conclusion that the appellant was guilty of the offence must be correct, even if the offence was not one of absolute liability, as the respondent has argued, but simply one of strict liability. 

19. Even if the offence is one of strict liability and the defence of honest mistake upon reasonable grounds is available to a defendant in certain circumstances, I am satisfied that such a defence is not available where the prohibited circumstances are the result of the negligent acts or omissions of a person or persons to whom the appellant has entrusted the task of ensuring that the law is complied with. 

20. Were it otherwise it would frustrate the intention of the legislature.  The comments of the Court of Appeal in Gammon (Hong Kong) Limited v. Attorney General referred to by Lord Scarman ([1985] 2 HKC 661 at 669) are as apposite to the provisions of section 27(3) of the Public Health and Municipal Services Ordinance, Cap. 132 as to the provisions with which that case was concerned :

“… A building contractor who delegates his legal responsibilities to an agent can fairly be held liable if he appoints an agent who is incompetent or careless: he should regulate his business in such a way as to avoid, on the one hand, the appointment of incompetent agents and, on the other, the consequences of any carelessness by a competent agent.  Only if he is made responsible for seeing that the statutory standards are maintained can the purpose of the legislation be attained and in such a case as this the presumption of strict liability displaces the ordinary presumption of mens rea: (see Lim Chin Aik v The Queen [1963] AC 160, 174).”

21. If the argument of Mr Halkes was correct and the court was bound to look simply at the mind of those exercising a managerial role in the company, then for practical purposes there would be little difference in a case of a corporation between a defence of “honest mistake” and a defence of due diligence.  That cannot be the law.

22. For the above reasons, I dismiss the appeal.