HKSAR v. WING LOK CONSTRUCTION & ENGINEERING CO, LTD

HCMA 464/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 464 OF 2013

(ON APPEAL FROM KTS 21232 OF 2013)

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J U D G M E N T

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1.  The appellant was convicted in the magistracy on a summons contrary to sections 75(1), 77(2) and 77(5) of the Air Pollution Control Ordinance, Cap 311, which stated that on 31 May 2012 being the owner of the premises at Ground Floor, 9 Pei Ho Street, Kowloon when carrying out or causing the carrying out of work involving the use or handling of asbestos containing material in the said premises, did fail to appoint a registered asbestos contractor to carry out the work.

2.  The appellant company was convicted after trial, fined $20,000 and appealed against the conviction.

3.  The facts were simple and not disputed.  The appellant took over a demolition site from the URA on 26 April 2012.  It was known to the appellant that the site contained asbestos and they retained a specialist contractor to remove it; the contractor was to start work on 20 May 2012.

4.  In the interim the appellant secured the site, appointed security guards and engaged contractors to remove the ordinary rubbish.

5.  On an unknown date between 3 and 31 May 2012 a cooking range and a 15 metre long flue, each containing asbestos, went missing.  There was some evidence suggesting that equipment had been stolen from the site on earlier occasions and it was submitted for the defence that the missing items had been taken by outside burglars, but that even if the items had been taken by the subcontractors, the appellant could not be guilty of causing their removal.

6.  The magistrate considered the evidence and concluded that the items had been taken by the workers employed to clear the general rubbish and that they had done so either dishonestly to obtain the scrap metal value of the items, or else had removed them negligently, not realising that the items contained asbestos.  It was not possible, on the evidence, to be sure which scenario applied.

7.  The prosecution proceeded on the basis that the appellant was guilty because it was in occupation of the site at the time the asbestos was removed.  The magistrate considered that the appellant’s “general inaction, particularly its failure to warn the workers contributed substantially to the negligent or covetous removal”.  There was in fact evidence that the appellant had warned the workers in the statement of Choi Kin Ping accepted by the magistrate [Q41-A41-B261].

8.  The magistrate believed that any burglary could have been perpetrated only at night but ruled out the possibility of a burglar removing the items without attracting the attention of the guard. Eventually he ruled out the possibility of burglary whether by day or night and decided that the only people who could have removed the items were the subcontractors’ workmen and that they must have done so either negligently, not realizing the items contained asbestos, or with a view to theft.  In his view, if the security guard had seen workers removing items during the day they would have assumed that the items were part of the general rubbish the appellant had hired workers to remove.

9.  The magistrate found that the only reasonable possibility was that the workers had removed the items “negligently” or “greedily” and found the appellant to be at fault because as a matter of commonsense the appellant and its employees should have known that workers make mistakes or steal in the course of their work.

10.  It was accepted by both parties that the appeal turned on the true meaning of “cause”. In AG of HK v Tse Hung Lit[1986] 3 All ER 173 the meaning of “cause” was considered by the Privy Council which adopted as an accurate and succinct statement of the general principle prima facie to be applied that given by the High Court of Australia in O’Sullivan v Truth and Sportsman Ltd (1957) 96 CLR 220, 228:

“When it is made an offence by or under a statute for one man to ‘cause’ the doing of a prohibited act by another the provision is not to be understood as referring to any description of antecedent event or condition produced by the first man which contributed to the determination of the will of the second man to do the prohibited act….It should be interpreted as confined to cases where the prohibited act is done on the actual authority, express or implied, of the party said to have caused it or in consequence of his exerting some capacity which he possesses in fact or in law to control or influence the acts of the other. He must moreover contemplate or desire that the prohibited act will ensue.”

11.  What is required is a positive application of either the appellant’s authority, or its exertion of some capacity to control or influence the act of the workers.  Thus although the appellant when securing the site might have taken inadequate steps to prevent the theft of items and a workman seeing the unguarded items might have decided to steal them, it cannot be said that the appellant “caused” the theft.  Counsel for the appellant submitted that to find otherwise would mean that a householder who failed to lock his door could be blamed for any burglary that resulted.

12.  The person alleged to have caused the action must be shown to have contemplated or desired that the prohibited act “will ensue”; that he may have contemplated that there was a risk of theft is different from his contemplating that a theft will ensue due to the Appellant’s positive act.

13.  Here the appellant did not want the items removed by anyone but the specialist contractor hired for that purpose.  The appellant did not want the items to be stolen nor was there any indication that their less than adequate anti‑theft measures were intended to benefit prospective thieves.  If it was a possibility that the items had been stolen, which on the facts it was, the appellant could not be held to have “caused” their removal.

14.  In fact there were two possibilities as to how the items had disappeared.  One was that they had been stolen by outsiders, whether by day or night and the other was that they had been removed, by accident or by design, by workers working on the site.

15.  There was no evidence to suggest the theft had occurred with the connivance of the appellant, or that the appellant had desired that such act would ensue.  The appellant had been alive to the possibility of theft but that is a long way from saying that the appellant caused the theft to occur as the result of its own positive act.

16.  It was not possible for the magistrate on the evidence before him to rule out the items having been stolen; that meant it was not possible to find the loss of the item had been “caused” by the appellant.

17.  Accordingly I allow the appeal, enter a finding of not guilty in respect of the summons and quash the fine.

18.  An order nisi for costs is made in favour of the appellant for costs of the appeal and of the trial, such order to be made final 14 days from the date of handing down of this judgment, with liberty to apply.