ATTORNEY GENERAL v. NG CHUNG HING

Magistracy Criminal Appeal No. 948 of 1990

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HEADNOTE

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AN OFFENCE OF EMPLOYING UNDER AGE FEMALES CONTRARY TO REGULATION 29(1)(C) OF THE DUTIABLE COMMODITIES (LIQUOR) REGULATIONS, CAP.109 IS AN OFFENCE OF STRICT LIABILITY.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 948 OF 1990

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JUDGMENT

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1. This was an appeal by way of case stated by the Attorney General against a decision of S.Y. Lim, Magistrate to dismiss four charges of employing under-age females in licenced premises, contrary to regulation 29(1)(c) of the Dutiable Commodities (Liquor) Regulations, Cap. 109.

2. The allegations were that on the 1st and 3rd August 1989 at the China Nightclub in Kimberley Road, Kowloon, 30 young girls, all under the age of 18, had been employed between 6 a.m. and 8 p.m. without the permission of the Liquor Licencing Board. No evidence called by the Crown established that the respondent, the licensee, knew that the girls had been employed or that they were under the age of 18. The learned Magistrate found that the offence was not one of strict liability, that the Crown had failed to prove mens rea in the respondent, and acquitted him.

3. The question of law simply was "Was I correct in ruling that regulation 29(1)(c) of the dutiable Commodities (Liquor) Regulations, Cap. 109 does not create an offence of strict liability?"

4. In Sweet v. Parsley [1970] A.C. 132, a case often quoted in support of the principle that there is a presumption that mens rea is an essential ingredient of every offence, Lord Diplock at p.163 allowed for possible exceptions where he said : -

"Where penal provisions are of general application to the conduct of ordinary citizens in the course of their every day life, the presumption is that the standard of care required of them in informing themselves of facts which would make their conduct unlawful, is that of the familiar common law duty of care. But where the subject matter of its statute is the regulation of a particular activity involving potential danger to public health, safety or morals in which citizens have a choice as to whether they participate or not, the court may feel driven to infer an intention of Parliament to impose by penal sanctions, a higher duty of care on those who choose to participate and to place upon them an obligation to take whatever measures may be necessary to prevent the prohibited act, without regard to those considerations of cost or business practicability which play a part in the determination of what would be required of them in order to fulfil the ordinary common law duty of care."

That such exceptions exist was confirmed by Lord Scarman in Gammon (Hong Kong) Ltd. and Others v. Attorney General of Hong Kong [1984] 2 All E.R. 503 at p.508 when he said : -

The Privy Council decided in that case that the offences being discussed, which were under ss.40 (2) (a) & (2)(b) of the Buildings Ordinance, were offences of strict liability as the ordinance was concerned with an issue of social concern viz. public safety, and that strict liability would be effective to promote the object of the statute.

5. In a later case in Hong Kong, A.G. v. Demand Enterprises Ltd. [1987] H.K.L.R. 195, Sir Denys Roberts, C.J., in an appeal from a magistrate in relation to. Regulation 4(1)(b) of the Employment of Children Regulations applied the ratio in Gammon, and found that the offence was one of strict liability. In the course of his ruling, Roberts, C.J. referred to two previous decisions of the High Court, R. v. Tam Wing-him (1978) H.K.L.R. 404 and Lee Fu-yuen and Another v. R. (1978) H.K.L.R. 522. In the first of these cases, Li J. was dealing with an offence against Regulation 29(1)(a) of the Dutiable Commodities (Liquor) Regulations, Cap. 109 and in the second case, the offence was against the Miscellaneous Licences Regulations, Cap. 114. Both cases had to do with the age of employees and the question arose in both as to whether or not the offences were ones of strict liability. In both cases, Li J. found that they were not. In declining to follow the decisions of Li J. in these cases, Roberts C.J. said this :

"Both of these regulations were similar in object and in content, being designed to protect girls below a certain age against the undersirable acquaintances they would make, and influences they would meet, in bars and dance halls.

 

However, I doubt if the judge ever directed his attention to the question of whether or not these offences were absolute ones. In view of the earlier concession of the Crown, that the employment of a gird under the age of 14 in a bar required guilty knowledge to be established, the judge could hardly have come to a different conclusion in relation to a girl employed in a dance hall.

 

Nevertheless, if it had been necessary for me to interpret those regulations, I would have felt it necessary to follow those dicisions. But I do not consider myself to be bound by them in relation to legislation which is intended to protect children against different dangers, namely, premature employment in industry."

Mr Lugar Mawson who appeared for the Attorney General submitted that Roberts C.J. was less than clear in his observation on the question of stare decisis . I do not agree. It seems clear to me that Roberts C.J. was saying that he would have been bound to follow Li J.'s decision in both these cases, that was to find the offences were not absolute offences, had his case concerned the Dutiable Commodities (Liquor) Regulations and the Miscellaneous Licences Regulations. He was clearly saying he was able to distinguish the Demand Enterprises case because it dealt with the employment of children in industrial premises and not in licensed premises. However I do share Mr Lugar Mawson's puzzlement at the observation in light of Roberts C.J.'s decision that the offences in Demand Enterprises were absolute offences.

6. In any event, it must be noted that Li J. dealt with both these cases before the Privy Council handed down its judgment in Gammon, and also before another case in Hong Kong: Attorney General v. YIP Man-cheong [1989] H.K.L.R. 547. In that case, the Court of Appeal decided that the offence created by s.171(1) of the Immigration Ordinance was one of strict liability. That section makes it an offence for an employer to employ an employee who is not lawfully employable. Once again in that case, the five principles stated by Lord Scarman in Gammon (Hong Kong) Ltd. and others v. Attorney General of Hong Kong were applied.

7. It is certainly true that the court found that if s.171(1) of the Immigration Ordinance did not create an offence of strict liability, then s.171 (2) (b) of the ordinance would be superfluous. That section created a defence to sub-section (1). Mr Mayne who appeared for the Respondent submitted that because of the Court's reference to section 171 (2) (of s.171), it is a case distinguishable from the present case and turned on its own facts, I do not agree. The court clearly applied Lord Scarman's principles and found that the legislation created an offence of strict liability by applying the principles to that legislation.

8. Unlike Roberts C.J., I do not feel myself bound, by the decisions in Tam Wing-him v. R. and R. v. LEE Fu-yuen and Another because though not expressly disapproved of in Gammon or Yip Man-cheong (they in fact were not referred to in these cases) it is clear that the ratio in Gammon (applied in Yip Man-cheong), by which I am bound was never before the Court in either of these cases. In fact, in Tam Wing-him the Crown and the defence agreed that mens rea was a necessary ingredient of the offence. It was as Roberts C.J. remarked in Demand Enterprises not surprising therefore that Li J. found that mens rea was a necessary ingredient of the offence. Nor was it surprising that he followed that reasoning in R. v. LEE Fu-yuen and Another.

9. Furthermore, if questions of public concern such as public safety (Gammon), or the employment of illegal immigrants (Yip Man-cheong), or the protection of children from underage employment (Demand Enterprises) dictate that the offences which deal with them are absolute offences, then a fortiori offences which forbid underage employment in clubs and bars must also be construed as offences of strict liability.

10. Applying the Gammon principles to the offence created by Regulation 29(1)(c) of the Dutiable Commodities (Liquor) Regulations, Cap. 109, it seems to me that there can be little doubt but that despite the absence of clear words or necessary implication in the terms of the regulation, the offence is not truly criminal; it is certainly related to an issue of serious social concern, viz the protection of young girls against the bad influences likely to be brought to bear upon them in establishments such as nightclubs and bars; and it will be effective to promote greater viligance against exposing young people to these bad influences.

11. The regulation is, therefore, one in which the presumption that mens rea is required can be displaced. The answer to the question posed is "No”. This is an offence of strict liability.