ATTORNEY GENERAL v. HO YUK CHUN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 1302 OF 1986

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JUDGMENT

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1. This is a case in which the Crown appeals by way of case stated from the decision of I.R. Tanzer, Esq., Magistrate, sitting at Tsuen Wan Magistracy. The respondent HO Yuk-chun was acquitted on four charges of employing a child in an industrial undertaking, contrary to regulations 4(1)(b) and 9(1) of the Employment of Children Regulations made under the Employment Ordinance, Cap. 97.

2. Regulation 4(1)(b) provides that "no person shall employ a child or cause or permit a child to be employed in any industrial undertaking." A child is defined in the Employment Ordinance, Cap. 57 as being “a person under the age of 15 years.” It is not in dispute in this case that the four children concerned were under that age on the date in question.

3. The facts of the case were simple. On the 30th of December 1985, a Factory Inspector, Mrs. TSE YEUNG Sau-kam, visited the premises of Karentex Garment Factory in Tsuen Wan at approximately 4 p.m. That factory was engaged in manufacturing shirts by power driven machinery and is owned by the respondent. The Factory Inspector noticed four young girls working in that factory alongside other adult workers. Two children were stamping serial numbers onto paper labels, one was attaching paper labels onto shirt collars, whilst the fourth was packing shirts into polythene bags. She noticed this process going on for over five minutes, after which she approached the respondent and enquired of her the names and ages of those children. The respondent denied she had employed the four children or was paying them a wage, but pointed out that they were school-friends of her daughter and because business was brisk and an urgent shipment was needed from her factory, she let them help her to get the work done. No evidence was given by the prosecution at the trial as to the nature of the labels on which these girls were stamping serial numbers, nor was it known whether the label one child was affixing to the shirt collars was the same kind as those which the two others were stamping with serial numbers. On this evidence, the magistrate was satisfied that there was a prima facie case. Later when acquitting the appellant, he said, and I refer to the words he recorded in the case stated:

“I cannot take judicial notice of the procedure in shirt making and, even if I could, I would not know if what the four children were doing was part of or incidental to or connected with shirt making."

4. Regulation 3(3) of the Employment of Children Regulations Cap. 57 provides:

"A child who works in an industrial undertaking or other place of employment, whether for wages or not, either in a process, trade or business or in cleaning any part of the industrial undertaking or other place of employment used for any process, trade or business or in any other kind of work whatsoever incidental to or connected with the process, trade or business shall be deemed to be employed therein for the purposes of these regulations or of any proceedings thereunder.”

The wording is as wide as- it could be and the question which fell for determination before the learned magistrate was whether or not the work performed by these children or anyone of them, was "incidental to or connected with the process or business of shirt making". One needs to look at not the actual process involved in the manufacture of a shirt, but at the business of shirt making. The magistrate did not consider he was entitled to use his general knowledge as to the shirt making business.

5. In May on Criminal Evidence, paragraphs 1 - 39 and 1 - 40, the author when referring to "Judicial Notice” says :

“The doctrine of judicial notice allows the tribunal of fact (the magistrates or jury in a criminal case) to find that a fact exists without evidence being called to establish it.

The expression ‘judicial notice’ is however used in a number of different ways. In its best-known form the doctrine refers to the notice taken of facts which are so well-known or notorious as to render proof unnecessary.”

The question here is :- Was it essential for the Crown to prove more than it did in seeking to establish that the acts performed by these children was incidental to the business of making shirts? We all know that shirts are sold in packaging; we know that buttons are attached to cuffs; we all know that collars almost invariably have affixed to them washing instructions; we also know that labels are affixed to shirts giving advice to the purchaser as to how to treat the shirt; also we know that serial numbers are invariably attached to labels affixed to shirts lest complaints be lodged later on.

6. In my opinion, the magistrate was clearly entitled to use his general knowledge of the world and reach the conclusion that the Crown had proved that this work was incidental to the business of shirt making.

7. The questions asked in the case stated are as follows: First: Was I correct in holding that the prosecution must prove beyond a reasonable doubt the provision in Regulation 3(3) of the Employment of Children Regulations upon which the prosecution relies before the deeming provision therein applies? The answer to that question is “Yes".

8. The second question raised is : Was I correct in holding that I cannot take judicial notice of the procedure in shirt making and that the Crown must prove such procedure in the usual way? The answer to that question is “No”.

9. The third and last question is : Was I wrong in law in holding that I could not be satisfied beyond a reasonable doubt, on the evidence before me, that the four children were “working" either in a process, trade or business or in any other kind of work whatsoever incidental to or connected with the process, trade or business and therefore the deeming provision in Regulation 3(3) did not apply? The answer to that question is "Yes, once it was established that the workers were children."

10. In those circumstances, this appeal by way of case stated is allowed and these proceedings are to be remitted to the magistrate for him to convict the respondent and thereafter, impose such fine as he thinks appropriate in the circumstances.