HKSAR v. MK ELECTRIC (CHINA) LTD

HCMA 408/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 408 OF 2003

(ON APPEAL FROM TWS 15234/2002, TWS 15235/2002,
TWS 15236/2002, TWS 15237/2002 AND TWS 15238/2002)

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J U D G M E N T

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1. The Appellant pleaded not guilty in the Magistracy to six summonses under the Dangerous Goods (Consignment by Air) (Safety) Ordinance, Cap. 384, which had been re-amended at trial. Each summons related to wet cell batteries which were classified as "batteries, wet, filled with alkaline" or "batteries, wet, filled with acid", which were Class 8 Dangerous Goods.

2. TWS 15234/2002 alleged a contravention of regulation 4(1)(b) of the Dangerous Goods (Consignment by Air) (Safety) Regulations, Cap. 384, in that dangerous goods were not classified and packed in accordance with the relevant Technical Instructions.

3. TWS 15235/2002 alleged a contravention of regulation 4(1)(c), in that packings used were not in accordance with the Technical Instructions relevant to the particular goods.

4. TWS 15236/2002 alleged a contravention of regulation 4(1)(d), in that the dangerous goods were not marked and labelled in accordance with the Technical Instructions specified for the purposes of the regulations.

5. TWS 15237/2002 alleged a contravention of regulation 4(1)(f), in that the package containing the dangerous goods was not in a fit condition for air carriage.

6. TWS 15238/2002 alleged a contravention of regulation 4(1)(g) because the dangerous goods were not accompanied by the documents specified in regulation 6.

7. Almost all the prosecution evidence and supporting documentation was agreed under section 65C of the Criminal Procedure Ordinance, Cap. 221. The prosecution called only one witness, Mr Chean Kit, who was the manager of an airfreight company, Geo Logistics Limited; he was tendered for cross-examination at trial. Mr Chean's company had dealt with the Appellant's shipment. The magistrate found he was an expert in his field.

Facts

8. Geo Logistics Limited received an instruction from the Appellant on 6 March 2002 for dispatch of goods by air; electronic equipment was to be sent from Hong Kong to Frankfurt, Germany. Geo Logistics collected the goods from the Appellant and arranged to send them to Germany by Cathay Pacific Airways. When the goods were collected, the Appellant did not inform Geo Logistics Limited that they were dangerous goods.

9. The Assistant Warehouse Supervisor of Geo Logistics Limited collected two parcels of goods from the Appellant on 6 March 2002. The packages did not bear any dangerous goods labels or markings, or UN marking and, in particular, did not bear a Class 8 Dangerous Goods label. The packages were not damaged at the time of collection and the goods were accepted under general cargo acceptance procedures and a consignment note completed. The Appellant did not hand over a completed Shipper's Declaration.

10. A Cargo Duty Officer of Cathay Pacific Airways confirmed that on 7 March 2002, a prepacked consignment of cargo, including a carton declared as "electrical equipment" under the Airway Bill, with the shipper marked as MK Electric and the freight forwarder as Geo Logistics Limited, was forwarded from Hong Kong to Dusseldorf Airport in Frankfurt by Flight No. CX8455. The officer confirmed that the consignment was not declared; in other words, it was not classified as dangerous goods under the Airway Bill. There were no dangerous goods markings or labelling on the packings of the consignment. Accordingly normal acceptance procedures for general cargo were adopted.

11. Mr Alex Luk, representing the Appellant, admitted that the consignment consisted of a 5a charger and a batch of 4 10AH LC10P Ni-Cd "water batteries". He did not know and had no information about the components of a "water battery". It was admitted that the consignment had been sent as general cargo and not treated as dangerous goods.

12. An Operations Officer of the Civil Aviation Department, Madam Chan, (PW4) investigated the incident. She inspected four assemblies of wet cell batteries which had been stored at Airport Packing Logistics in Germany and photographs (Exh. P7) were taken of them. She confirmed the batteries had markings of "ALCAD-LC10P" on them. The lids of the batteries were not taped or secured and the liquid inside the batteries could spill out easily. There was no cap on them to protect the terminals of the batteries from short-circuiting.

13. Her evidence, as stated in the Admitted Facts, did not confirm the nature of the liquid content of the batteries, nor was there any correlation, or explanation, of the markings she noted on the items she inspected, with the markings referred to by Mr Luk. Whether those markings indicated a particular type or model of battery, or whether they were some form of stock or serial number was not mentioned. Her evidence did not link the items consigned from Hong Kong by the Appellant with the items she inspected.

14. The main issues at trial were whether the prosecution had proved the batteries shown in the photographs were the same ones shipped by the Appellant and whether the batteries, if they were the same ones shipped, contained acid or alkali, so as to fall within the definition of "dangerous goods" for purposes of air transport.

15. The magistrate found that the Appellant was both the shipper and the consignor of the batteries and charger. He found Geo Logistics Limited was a freight forwarder.

16. The magistrate found that the Appellant had offered Ni-Cd batteries and a charger to Geo Logistics Limited for carriage by air. He was satisfied from the documents produced that the batteries and charger had been sent by air as general cargo.

17. Section 5 of the Dangerous Goods (Consignment by Air) (Safety) Ordinance, Cap. 384 states that it shall be a defence to any offence under this Ordinance committed by a company, its directors or officers to prove to the satisfaction of the court:

(1) the act or omission constituting the offence occurred without his knowledge or consent; and

(2) he exercised all such reasonable supervision and reasonable diligence to prevent the commission of the offence as he ought to have exercised having regard to the nature of his functions in that capacity and to all the circumstances.

18. The magistrate was satisfied the Appellant had not proved the second part of the statutory defence on the balance of probabilities and found the prosecution had disproved the same beyond reasonable doubt. In particular he found that the Appellant had not taken steps to find out about the contents of the batteries, or the proper methods of transporting them.

19. A submission of no case to answer was made but rejected and eventually the magistrate convicted the Appellant on each summons.

Grounds of Appeal

20. The perfected grounds of appeal were first that the magistrate erred in finding that the batteries shipped by the Appellant on 6 March 2002 were wet batteries filled with either acid or alkali, which fell within the definition of "dangerous goods" under section 2 of the Dangerous Goods (Consignment by Air) (Safety) Ordinance, Cap. 384, when there was no such evidence before him.

21. The second ground was that the magistrate erred in taking judicial notice of facts stated in paragraph 13B of his Statement of Findings, when such facts should have been the subject of specific proof by the prosecution. The magistrate stated:

(i) that it is a well-known scientific fact and a matter of common knowledge that batteries are used to store electricity and they do not absorb and store electricity from water alone but a chemical reaction of some sort is required for this purpose;

(ii) that it is a well-known scientific fact and a matter of common knowledge that a charger is required to input electricity into such types of battery.

He stated he took judicial notice of the facts at (i) and (ii) as proof of those facts.

22. The third ground of appeal was that the magistrate erred in finding the word "water", as used by Mr Luk of the Appellant company, related to the water needed to top up a battery that operated by chemical reaction and in finding that any chemicals used in such batteries must be either acid or alkali as such was found in "water top up batteries", when there was no evidence to that effect before him. The fourth ground of appeal was that the conviction of the Appellant on the summonses was unsafe and unsatisfactory.

23. I enquired, and was advised by counsel for the Respondent, that summonses such as these are commonly heard by the device of producing Admitted Facts and no, or a limited number of, oral witnesses, but it seems that in this particular case that was a procedure fraught with some difficulty and which led to serious confusion.

24. The main flaw in following this procedure was that nobody referred to, or described, the batteries in the same terms. The distinctions, if any, between the terms "batteries wet" or "wet cell batteries" (as used in the summonses); "water batteries" (as used by Mr Alex Luk) and "water top up batteries" (as used by the magistrate) were not reconciled at trial. Mr Alex Luk confirmed that the Product Information the Appellant company had, did not specify the contents of "water batteries" and he did not know what the components of "water batteries" were.

Ground 1

25. Despite the extensive Admitted Facts and agreed documents, the Appellant made no admission that the batteries which arrived in Frankfurt were those despatched by the Appellant. Nor did the Appellant admit the nature of those batteries, or the type of liquid, if any, they contained - those were facts which had to be established before the Magistrate could be sure the summonses had been made out, whether in their original or amended forms.

26. Further, while it was helpful to have a description of the type of battery set out in the Admitted Facts, nobody actually linked that description to the batteries the purported subject of the summonses. Mr Ben Ho of the Appellant referred to seeing a charger and some "blocks of things" inside cartons. Mr Alex Luk referred to a batch of "water batteries". Although that enabled the magistrate to be satisfied beyond reasonable doubt that the batteries and charger examined by the Operations Officer (PW5) were those shipped by the Appellant, it is difficult to see any evidential link which enabled him to do so.

27. The magistrate acceded to defence counsel's submission that the symbols and words on the batteries shown in the photographs, Exhibit P7, were hearsay and could not be used to prove the truth of what the batteries contained. But he did find that he could refer to the photographs and be sure that the code numbers and letters shown on the Appellant's packing list were identical to those found on the batteries in the photographs; that the batteries in the photographs were wet-cell batteries made up of blocks and that the batteries had caps and spaces on the top where they could be filled. He went on to draw the irresistible inference from those details that the batteries consigned by the Appellant and those in the photograph were of a similar design with a liquid content. Having said he accepted counsel's assertion that this did not prove these were the actual batteries shipped by the Appellant, he went on to conclude that they were.

Ground 2

28. In the absence of any admission by the Appellant as to the nature of the liquid content of the batteries and without any specific or expert evidence, it was not appropriate for the magistrate to have relied on what he described as "well-known scientific facts and matters of common knowledge" in relation to the ways batteries work and taken judicial notice of those facts as proof of the nature of the liquid content of the batteries in question.

29. The magistrate was entitled to take judicial notice of simple, general principles of how batteries worked, (such coming under the category of common scientific knowledge or principles.). He could not judicially notice, as a consequence, that the nature of the liquid contained in the batteries seized, "must be" either acid or alkali and thus find that the batteries seized fitted the description of wet batteries, as set out in the summonses.

30. It was necessary to clarify the meaning of "water battery", as used in the Admitted Facts, and/or for evidence to be given confirming what the liquid content of the seized batteries was, before the magistrate could find the items shipped were wet batteries. That was not done and there was no evidence to prove what type of battery had been seized.

Ground 3

31. The magistrate at para. 13(c) of his Statement of Findings found as follows:

"I found the word "water" used by Mr Luk related to the water needed to top up a battery that operated by chemical reaction as this was, I found, the only reasonable inference I could draw for the word "water" in the circumstances of this case as the battery could not operate on water alone. I further found that any chemicals used in such batteries must therefore be either acid or alkali as such was found in water top up batteries."

32. It is difficult given the evidence to see how, this was the only reasonable inference the magistrate could draw for the meaning of "Water", used by Mr Luk.

33. There was no evidential explanation by Mr Luk or anyone else of what this description meant, nor any explanation of why this meant the chemicals used in such batteries 'must be' either acid or alkali. Nor did it link the items shipped by the Appellant with the items which arrived in Frankfurt.

34. The magistrate did not explain what he meant or understood by "water top up batteries". Whether he is referring to wet batteries; wet cell batteries; or water batteries (in the same, unexplained, sense as Mr Luk refers to them) is not clear.

35. The magistrate appears to have treated the different descriptive terms for the batteries as interchangeable. Unfortunately the terms were not clarified for the benefit of the court, as they could have and should have been, by an expert, or someone working in the trade. The items shown in Exh. P7 indicated a maximum fluid level and the magistrate considered 'topping up' may be required. There was no evidence or Admitted Facts before him to establish the nature of the liquid in the battery units shown whether acid, or alkali, or water. Madam Chan, PW4, made no comment on the liquid content of the batteries she inspected.

36. In all the circumstances the magistrate could not have been satisfied beyond reasonable doubt, on the evidence available, that the batteries contained acid or alkali.

37. It was for the prosecution to establish that it was wet batteries, containing acid or alkali, that had been consigned by the Appellant and that the batteries consigned by the Appellant were those that were seized in Frankfurt. This they failed to do and in the absence of cogent evidence it was not for the magistrate to fill the gaps.

38. In conclusion I would comment that appellate courts are sensible of the need in a busy Magistracy to save time and can see the attraction, for the magistrate and the parties, in proceeding by way of Admitted Facts. Nevertheless that procedure has to be carried out carefully to ensure that all the evidential links can be fully established through the Admitted Facts, supporting documents and, where necessary, admissions made by representatives of the defendant. If that is insufficient to establish the prosecution case in its entirety, it would be simpler, safer and, ultimately, quicker, to call witnesses who can establish such links.

39. Here the use of the term "water battery" should have been clarified and the Admitted Facts amended, or, if that was not possible the relevant witness or witnesses should have given oral evidence. Similarly the absence of a link between the items consigned by the Appellant and those ultimately examined by Madam Chan should have been noticed and supplied.

Ruling

40. The Appellant has succeeded in establishing Grounds 1 to 3 of this appeal. I allow the appeal, quash the convictions and order that any fines paid be returned to the Appellant.

41. There will be an order nisi for costs of the appeal and costs in the court below, in favour of the Appellant, such order to be made absolute by 4 p.m. on the 14th day after the date of judgment.