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HCMA000732/1995
IN THE SUPREME COURT OF HONG KONG
(Appellate Jurisdiction)
MAGISTRACY APPEAL NO.732 OF 1995
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| BETWEEN |
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THE ATTORNEY GENERAL |
Appellant |
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and |
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CHINA STATE CONSTRUCTION ENGINEERING CORPORATION |
Respondent |
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Coram: Hon. Gall, J. in Court
Date of Hearing: 14th September 1995
Date of handing down Judgment: 16th October 1995
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JUDGMENT
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1. This appeal is by way of a case stated from a magistrate.
2. The Respondent herein was prosecuted before the magistrate for an offence contrary to Section 38A of the Immigration Ord. Cap. 115. Section 38A is couched in these terms:
"38A. Site controller commits offence if illegal immigrant on construction site
(1) In this section-
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"construction site" means a place where construction work is undertaken and includes any area in the immediate vicinity which is used for the storage of materials or plant used or intended to be used for the purpose of the construction work; |
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"construction site controller" means a principal or main contractor and includes a subcontractor, owner, occupier or other person who has control over or is in charge of a construction site; |
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"construction work" has the same meaning as in the Factories and Industrial Undertakings Ordinance (Cap. 59) but does not include redecoration, renovation, alteration, maintenance or repair of domestic premises by- |
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(a) an occupier of the premises; or |
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(b) an owner of the premises if that is the only premises owned by him in the building which contains the premises; |
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"domestic premises" means premises used or intended to be used solely or principally for residential purposes and constituting a separate household unit. |
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(2) Where it is proved that a person to whom section 38(1) applies was on a construction site, the construction site controller of that construction site commits an offence and is liable to a fine of $250000. |
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(3) It is a defence in proceedings for an offence under this section for the person charged to prove that he took all practicable steps to prevent persons to whom section 38(1) applies from being on the construction site." |
Section 38 (1) of the Ord. states:
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(1) Subject to subsection (2), a person who- |
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(a) being a person who by virtue of section 7 may not land in Hong Kong without the permission of an immigration officer or immigration assistant, lands in Hong Kong without such permission; or |
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(b) having landed in Hong Kong unlawfully, remains in Hong Kong without the authority of the Director, shall be guilty of an offence and shall be liable on conviction to a fine of $10000 and to imprisonment for 3 years. |
3. The offence alleged was that on the 30th of November 1993 the respondent was the site controller of a construction site at Block E and F of Phase II of the Yiu Tung Estate, She Kei Wan, when an illegal immigrant as defined by Section 38 (1) of the Ord. was found there. Having heard argument from counsel on a preliminary point the magistrate ruled that section 38A had been repealed by the Bill of Rights Ord. I do not propose to set out the provisions of the Bill of rights Ord. pursuant to which the magistrate ruled that the Section had been repealed save to say that by Section 3(2) of that Ord. all pre-existing legislation that did not admit of a construction consistent with the Bill of Rights Ord. was to the extent of that inconsistency repealed.
4. The reasons given by the learned magistrate for his decision were these:
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"(a) When assessing if a provision is consistent with the Bill a court must first decide what are the essential ingredients of an offence. |
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(b) In deciding what are the essential ingredients of an offence what is decisive is the substance and reality of the language creating the offence rather than its form. |
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(c) There must be flexibility in deciding whether a provision is inconsistent with the Bill to allow a balance to be drawn between the interests of the person charged and the interests of the state. |
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(d) Exceptions to the principle that the prosecution has to prove the guilt of a defendant beyond reasonable doubt can be justified when it remains primarily the responsibility of the prosecution to prove the guilt of the accused to the required standard and if the exception is reasonably imposed. |
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(e) The less significant the departure from that principle, the simpler it will be to justify that exception; provided the prosecution retains responsibility for proving the essential ingredients of the offence, the less likely it is that an exception will be regarded as unacceptable. |
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(f) If an exception requires certain matters to be presumed until the contrary is shown, then it is difficult to justify that presumption unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend." |
5. The magistrate went on to find that no distinction should be made as to whether or not the offence was either one of strict liability with a due diligence or special defence or an offence containing a presumption but that a court should look at " the substance and reality of the language creating an offence rather than its form." He made no finding as to whether Section 38A of the Immigration Ord. is an offence of strict liability.
6. In Gammon (Hong Kong) v Attorney General 1985 AC 1 Scarman LJ said at page 16:
"Whether, therefore, a particular provision of the statute creates an offence of full mens rea or of strict liability must depend on the true meaning of the words of the particular provision construed with reference to its subject matter and to the question whether strict liability in respect of all or any of the essential ingredients of the offence would promote the object of the provision."
7. The test to be applied in determining whether an offence is one of strict liability is set out in Gammon (Hong Kong) v Attorney General (supra) and was recently approved in Attorney General v Fong Ching-yue 1995 1 HKC 21 in these terms:
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"(1) there is a presumption of law that means that mens rea is required before a person can be held guilty of a criminal offence; |
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(2) the presumption is particularly strong where the offence is "truly criminal" in character; |
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(3) the presumption applies to statutory offences and can be displaced only if this is clear, or by necessary implication, the effect of the statute; |
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(4) the only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern, and public safety is such an issue; |
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(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." |
8. For reasons I will give later it is first necessary to consider whether Section 38A is an offence of strict liability and to therefore apply the five propositions set out above.
9. The first proposition of the presumption of mens rea sets out the criterion within which the other propositions must be considered.
10. The second proposition is whether the presumption of mens rea is particularly strong because the offence is "truly criminal" in character. The offence created by Section 38A (2) prohibits the presence on a construction site of persons belonging to an extremely limited class of persons as defined by Section 38 (1) of the Ord. The offence created by Section 38A(2) is of the kind referred to by Bokhary JA in Attorney General v Fong Ching-yue as "mala prohibita rather than mala in se." The conduct is not prohibited because it is inherently evil but because the it is necessary to regulate those who enter Hong Kong unlawfully and remain without proper consent. Clearly this offence is not truly criminal in nature.
11. The third proposition is that the presumption of mens rea applies to statutory offences and can be displaced only if that is clearly or by necessary implication the effect of the statute. I have no doubt looking at the Ordinance as a whole, and Sections 38 and 38A in particular, that the intention of the legislation is to oust the presumption of mens rea to the effect that the prosecution need not prove any knowledge of any kind in respect of the defendant.
12. The fourth proposition limits the displacing of mens rea to those sections where a statute is concerned with an issue of social concerns and illustrates the nature of such social concerns by a reference to public safety. (that being the factual issue in Gammon) Illegal immigration into the territory must be a matter of social concern not only for the executive of government and the legislature but also for the man in the street. It is commonsense that many of those who enter Hong Kong illegally fro the north are unskilled or if skilled are skilled in those areas of use to the construction industry. It is further obvious that building construction is frequent and widespread in the territory and it must be a social concern that the sites of such construction could, in the absence of statutory control, become attractions for that group defined by Section 38(1). Section 38A is a protection to the community.
13. The last proposition is to the effect that even where the statute is concerned with an issue of social concern the presumption of mens rea will not be displaced unless it can be shown that its displacement will be effective in promoting the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act. I am of the view that greater vigilance in such a way that that the objects of the statute would be promoted would result from a holding that the Section 38A (2) created an offence of strict liability. Further I do not consider that harm would be done to the construction site controller if he has to prove that he took practicable steps to prevent those prohibited from being on the site. I do not accept the findings of the magistrate that placing the onus upon the construction site controller to prove that "he took all practicable steps to prevent persons to whom section 38(1) applies from being on the construction site" is to place to onerous a burden upon the company. The reasoning of the magistrate is that such sites may be very large and contain many people and the burden is well nigh impossible of fulfilment. That approach in my view fails to give meaning to the words "practicable steps" in the section. What is or is not practicable in respect of the conditions applicable to each particular site will be a matter for the magistrate at trial. The magistrate further finds that the proof of failure by the site controller to take practicable steps should rest on the prosecution as the police are in a better position than the construction company to make that investigation. The issue with respect is not whether another person is able to supply that proof but whether the imposition on the construction site controller is warranted and whether it will be effective in the sense set out above.
14. I am satisfied that the offence created by Section 38A (2) of the Ord. is an offence of strict liability.
15. In Attorney General v Fong Ching-yue Bokhary JA said at page 28:
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"Of course, that is not to say that the express wholesale abolition of each and every mental element in our criminal law would be consistent with the Bill of Rights. If effective, such a measure would leave no one with liberty or security of person. And of course the right to liberty and security of person is a right secured for everyone under art 5(1) of the Bill of Rights. |
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But where the conclusion that a statutory offence is an offence of strict liability is a conclusion arrived at by a process of construction, then there would be no room left for an argument that the statutory provisions creating that offence is inconsistent with the Bill of rights." |
16. Miss Cheng argues that the fact that a statutory offence is one of strict liability does not necessarily mean that it is consistent with the Bill of Rights, and that proposition is consistent with the passage to which I have referred above. She argues that Attorney General v Fong Ching-yue deals solely with the question of mens rea whilst Section 38A deals with a defence of showing all practicable steps had been taken to avoid a certain circumstance. I accept that at some point the removal of right to liberty and security of person would make an offence of strict liability repugnant to the Bill of Rights but that point is far from reached in the matter before me.
17. I accept Attorney General v Fong Ching-yue as authority for the proposition that where by a process of construction is determined that a statutory offence is one of strict liability the determinations made in the course of that process will satisfy all the arguments that the offence offends the Bill of Rights not only as to the issue of mens rea but in respect of any element of that offence or any defence afforded by the statute. By this finding I also hold that if an offence is found to be one of strict liability by that process of construction the offence will meet the criteria laid down in Attorney v Lee Kwong-kut 1993 WLR 329.
18. The first question asked by the magistrate is:
"whether I erred in law in deciding that Section 38A of the Immigration Ordinance was repealed by the Bill of Rights Ordinance"
19. To this question my answer is "yes".
20. The second question is:
"whether I erred in law in dismissing the summons"
21. To this question my answer is "yes."
22. This matter is remitted back to the magistrate for trial on the issues.
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T.M. Gall |
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Judge of the High Court |
Representation:
Mr. T. Casewell SACP for the Appellant
Miss Teresa Cheng inst'd by Kwok & Chu for the respondent
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