HKSAR v. Able Engineering Co Ltd

HCMA 55/2020

[2021] HKCFI 1170

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 55 OF 2020

(ON APPEAL FROM KCS 14504 OF 2019)

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Before: Hon Campbell-Moffat J in Court

Dates of Hearing: 13 August 2020, 8 & 9 April 2021

Date of Judgment: 6 May 2021

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JUDGMENT

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INTRODUCTION

1.Able Engineering Company Limited (“the appellant company”) was convicted after trial before Ms Rachel Po, Deputy Magistrate, on 27 December 2019, of a single charge of Refusing to comply with a request for information, contrary to s24(1) and (2) of the Occupational Safety and Health Ordinance, Cap 509 (“the OSHO”).  The appellant company was fined $6,000.  By its Notice of Appeal dated 6 January 2020, the appellant company appealed that conviction on the grounds that it was against the weight of the evidence; evidence was improperly admitted or rejected as the case may be, and the conviction went against established principles of law.  It was therefore unsafe and unsatisfactory.

THE PROSECUTION CASE

2.The appellant company was the principal contractor for the development of a Public Rental Housing Development at Lai Chi Kok Road – Tonkin Street Phases 1 and 2 (“the Site”).  The relevant works commenced on 22 April 2016.  On 20 August 2018, there was a fatal accident (“the accident”) in which the deceased Mr Chiu Kit, who was an employee of Moreton Engineering & Equipment Company Limited (“Moreton”), was found lying unconscious with a head wound on the site without anyone having seen the cause for his injury.  He was taken to hospital and died of his injuries on 14 September 2018.  An investigation did not reveal the cause of the accident.

3.On 28 September 2018, an Occupational Safety Officer (“OSO”) carried out a further site inspection following the accident. Thereafter, and pursuant to s24 of the OSHO, the appellant was asked to provide information listed within the Appendix to a letter dated 26 October 2018 [P3].  This request was to be complied with by 9 November 2018.  This was not done.  On 21 November 2018, a further letter [P4] was sent to the appellant company reminding them of the request and enclosing the letter of 26 October 2018.  The appellant company was already in breach of the first deadline and no further deadline for compliance was given at that time.

4.The appellant company finally responded on 23 November 2018 [P8].  It referred to the letters of 26 October 2018 and 21 November 2018.  It pointed out that it had numerous meetings with representatives of the Labour Department after the accident and noted that the accident had not been classified as an industrial fatal accident under which there was to be either an Improvement Notice or Suspension Notice issued nor was there to be any legal action against the appellant company.  The appellant company enclosed 2 out of the 12 categories of documents requested under the letter of 26 October 2018, and provided no explanation as to why it had not complied in respect of the other 10.  The documents which were provided (Form 4 and Form 5) were simply Notices of Employment of a Safety Officer.

5.On 28 November 2018, the Labour Department (“the LD”) wrote once more to the appellant company [P5].  The LD reminded the appellant company that the accident was still under investigation and explained the requirement under the OSHO for the items requested.  In particular, it put the appellant company on notice that the appellant company was at risk of prosecution if it “without reasonable excuse, refuses to comply with a request…; or, in response to such a request, provides information that the person knows or ought reasonably to know is false or misleading.”  A further deadline was set for the provision of the remaining information/documents, which was to be within one week of the date of the letter i.e. 5 December 2018.  Once again the appellant company failed to comply within the deadline.  Five days later, on 10 December 2018, the appellant company provided 3 of the outstanding 10 categories of documents.  By its letter of 10 December 2018, the appellant company refers to letters of 26 October 2018, 21 & 28 November 2018 and 5 December 2018 sent to them by the LD.  I take it from that there is a further chasing letter of 5 December 2018, which is not within the bundle.

6.Under cover of their letter of 10 December 2018, the appellant company provided Forms 2A and 3A, which are monthly site reports by the Site Safety Officer, for June, July and August 2018 (three months immediately prior to the accident) and weekly reports by the Site Safety Officer (for four weeks immediately prior to the accident). It also provided supporting documents relevant to the training records of the victim (AB160-174) and, additionally, included a number of Notes of Meetings (AB170-174), the purpose of which was to underline the appellant company’s understanding that it was not to be proceeded against.

7.Not surprisingly, with several documents still outstanding, the LD wrote to the appellant company once again on 20 December 2018 [P6].  The contents of this reminder were in similar terms to that of the letter of 28 November 2018 [P5].  A further deadline of yet another week was set for the provision of the outstanding documentation i.e. 27 December 2018.  In particular, the Department asked the appellant company to inform them if they did not possess the information requested. Under cover of its letter dated 27 December 2018 [P10], the appellant company asked for more time.  Thereafter, it provided item a) on 3 January 2019 [P11], but asked for further time to provide the remaining documentation and for the first time requested clarification as to the categories of documents required.

8.On 11 January 2019, the LD issued a further letter, in much the same terms as previously, but with an explicit reference to the categories of documents required, with yet another seven‑day deadline expiring on 18 January 2019.  The appellant company finally replied on 24 January 2019 [P12], enclosing three more sets of documents but a further three sets were still outstanding, in particular items f), h) and k), which were the latest Site Safety Plan, contractual documents between the appellant company and its sub-contractor Moreton Engineering & Equipment Company Limited by whom the deceased was employed, and the in-house safety rules, all of which would be significant to the investigation.  It was at this stage that the appellant company was summonsed for this offence.

THE DEFENCE CASE

9.The appellant company gave evidence through its Director, Mr Lau Chi Fai (“DW1”).  It had three main arguments in trial. Firstly, the appellant company argued that the application under s24 of the OSHO, Cap 509 was erroneous.  The request should have been made under ss4(2) & 10 of the Factories & Industrial Undertakings Ordinance (“FIUO”), Cap 59, as the former was designed to protect employees in the non-industrial sector and the latter protects those within the industrial sector.  The appellant company argued that this mistake by the LD was irreconcilable and incurable.  Secondly, it argued that the prosecution had failed to prove “refusal”, which was an essential element of the offence and, lastly and alternatively, the appellant company relied upon the statutory defence of “reasonable excuse”.

THE MAGISTRATE’S FINDINGS

10.In her Statement of Findings (“SOF”), the learned magistrate dealt firstly with the argument as to whether the summons had been brought under the correct legislation.  There had been a substantial argument before her on this point.  Indeed 11 sets of Hong Kong Hansard materials had been relied upon by Mr Halkes on behalf of the appellant company.  The prosecution in reply relied upon well-known and accepted principles of statutory interpretation.  Mr Chan, on behalf of the prosecution, argued that the Court need go no further than look at the words of s24 of Cap 509, for its context and purpose.  The learned magistrate considered the arguments in some detail and at §29 agreed that her starting point should be that submitted by the prosecution.  She analysed the relevant legislation and case law over some 11 pages of her SOF and found that the request made by the LD under s24 of Cap 509 was a valid request and explained why.

11.The learned Magistrate then moved on at §43 to consider whether there was a duty upon the LD to seek to obtain the requested documents (items (f), (h) & (k)) from another source before requesting the documents from the appellant.  As to item (f), she found the document incomplete and that a source of the full document would be the appellant company even though parallel requests had been made to the Housing Authority.  There was no bar to seeking to obtain documents in tandem from more than one source, given the time constraints for the prosecution of offences.  There was no requirement to exhaust all other avenues of obtaining documents before s24(1)(b) was triggered and a request could be made of the appellant company.  As to item (h), the sub‑contract between the appellant company and Moreton, the learned magistrate found that, as a main contractor, the appellant company was better placed to have in its possession the full contract which would be required in any event to confirm the validity of anything obtained from the sub-contractor. She found the LD had good reason for asking the appellant company for this document rather than the sub-contractor.  It should be noted at this stage as will become apparent later, that the learned magistrate clearly had no idea the contract did not exist when she wrote her SOF.  As to item (k), she found that the only source of the document was from the appellant company.  In conclusion, given the status of the appellant company as the main contractor, it was in the best position to provide such documents being the author of them.

12.The following nine pages of the SOF were taken up with the appellant’s argument upon the word “refusal”.  The appellant company’s argument being that to refuse is “to decline a request …to comply with some requirement of law, as the result of a positive intention to disobey.” It was submitted that the prosecution must prove knowledge, intention or recklessness.  On the other hand, the prosecution submitted there was no requirement to prove mens rea.  The court had only to interpret the literal and natural meaning of the word.  This was an offence of strict liability where the defendant had an evidential burden to raise reasonable excuse.  This latter argument was accepted by the learned magistrate after some analysis of the relevant case law and with the rider that once reasonable excuse was raised, it was for the prosecution to rebut it.  Having considered the facts pertaining to the requests made by the LD and the drip feed of response, the learned magistrate found[1]:

“Having regard to the overall attitude and behaviour of the Defendant, I am of the view that the Defendant had abused the generosity of the Labour Department. Time and again, the Labour Department had repeatedly allowed the extension of time but the Defendant had taken it for granted. Although the Defendant did not expressly refuse to provide the remaining documents by words (P8-P12), the Defendant’s conduct speaks otherwise. The fact that the Defendant had not provided the outstanding documents to the Labour Department in spite of repeated reminders spanning over a period of two and a half months, I have no doubt that the conduct of the Defendant amounts to refusal.”

13.As for the last issue at trial, that of the statutory defence of reasonable excuse, the learned magistrate had already effectively dealt with this at §§66‑73 when dealing with refusal.  She rejected the evidence of PW3 and DW1, thereby rejecting the explanation for the failure to comply.  Without such explanation, there was no evidence before the court upon which the defence could rely in order to satisfy the burden placed upon them of raising the issue of reasonable excuse.  But this was not the end of the matter because she had, in any event, given reasons for her rejection of that explanation on the facts and went on to consider the undisputed documentary evidence, which contained no explanation from the appellant company.

14.In its Perfected Grounds of Appeal (“PGA”), the appellant company continues to maintain these three main arguments but further submits[2]:

“Ground 1:

a) The Trial Magistrate erred in rejecting the evidence of PW3 (Ms. Lo Sze Nga), a key Prosecution Witness, by virtue of the sole ‘reason’ of the Trial Magistrate forming a view that PW3 had a ‘tendency to give evidence in favour of the Defendant’ when giving evidence. Such a ‘tendency to give evidence in favour of the Defendant’ not being an issue for the Prosecutor, who called the witness or for the Trial Magistrate during the evidence of PW3. PW3 was never re‑examined, her evidence never significantly challenged and never saw any aspect of her evidence ‘clarified’ by the Prosecution, or for that matter such being in need of ‘clarification’ by way of re‑examination; despite much of the evidence given by PW3 being ‘in favour of the Defendant’.

b) PW3, as a Prosecution witness, summonsed and called to the stand, by the Prosecution, to prove the Prosecution’s case; was never declared hostile as a result of any ‘tendency to give evidence in favour of the Defendant’ and the Trial Magistrate never took steps to consider any need to clarify what the effect of her “favourable” evidence was on the case.

Ground 2:

a) The Trial Magistrate erred in finding that DW1 (Mr. Daniel Lau) was ‘untruthful’and erred in concluding that DW1 was making up ‘excuse for the Defendant to escape liability’ when there was totally inadequate evidence to support either finding his evidence not only being clear and cogent but also substantially corroborated by the Prosecution case and the evidence of PW3.

Ground 3:

a) Having rejected the evidence of both PW3 and DW1, in its entirety, with no weight attached to their respective evidence, the Trial Magistrate erred in then failing to correctly, if at all, consider what evidence remained before the Court at that stage. The Trial Magistrate then erred in finding an only reasonable and irresistible inference of a ‘refusal’ based on the remaining available, and inadequate evidence before the Court.

Ground 4:

a) The Trial Magistrate failed to acknowledge that an element that was required to be satisfied and proven by the Prosecution (beyond reasonable doubt), for the offence to be substantiated is that of a 2‑part test:

i. ‘only if the officer reasonably believes that the person has that information and

ii. cannot reasonably obtain the information from another source.’ (s24(1),Cap 509).

iii. The Trial Magistrate erred in failing to consider all other known and potential sources, from which the Labour Department could reasonably have obtained the requested information, including admitted sources; before an offence under s.24(2) of Cap 509 could be triggered.

Ground 5:

a) The Trial Magistrate erred in finding that subject offence provision does not specify the mens rea of the offender:

i. The Trial magistrate erred in finding that the Prosecution does not have to prove that the Defendant had ‘knowingly/intentionally/recklessly refused to comply with the request’.

ii. The Trial Magistrate erred in finding a ‘refusal’ had taken place on the part of (or by) the Defendant (a corporate entity) when there was no evidence in the Prosecution case of any refusal by the Defendant to comply with the request made at all, and all available evidence from PW2, PW3, and DW1 was of a course of on-going compliance.

iii. The Trial Magistrate erred in finding ‘piecemeal’ provision of materials by PW3 against the Defendant.

Ground 6:

a)  The Trial Magistrate erred in finding that the Occupational Safety and Health Ordinance (Cap 509) is applicable to an investigation under the Factories and Industrial Undertakings Ordinance (Cap 59), and misinterpreting the legislative intention of the respective ordinances.”

THE TEST ON APPEAL

15.This is an appeal under s113 of the Magistrates Ordinance, Cap 227.  An appeal under s113 allows the depositions before the magistrate to be “admissible as evidence of the evidence which was given” in the Magistrate’s Court (s118(1)(a)); authorises the reception of fresh evidence (s118(1)(b)) and empowers the judge on appeal to make whatever order the judge thinks just (s119(1)(d)).  Provisions of this sort are, as stated by the Court of Final Appeal in HKSAR v Chou Shih Bin,[3]the indicia of an appeal by way of rehearing.  This follows Lam Kau v R[4], in which Rigby J held that provisions similar to those now under consideration created an appeal “at large” rejecting a submission that the appellate court should not form its own independent judgment.  Blair‑Kerr J in Lo Yim Kai and Others v R[5] and subsequently McWalters J (as he then was) in HKSAR v Ip Chin Kei[6], re-affirmed that a rehearing in this sense is not a rehearing de novo, being instead a rehearing on the material before the magistrate supplemented by any fresh evidence which the appellate court may admit.  It is not limited to errors of law or excess of jurisdiction in the way that an appeal by way of case stated is so limited[7].

16.The characteristics of different classes of appeals were explained in the High Court of Australia by Dawson J in Harris v Caladine (1991) 172 CLR 84 where he said this at page 125:

“A hearing de novo may be contrasted with an appeal stricto sensu and an appeal by way of rehearing. In an appeal stricto sensu the question is whether, upon the material before the tribunal below, the conclusion which was reached was correct. An appeal by way of rehearing involves the rehearing of the matter as at the date of the appeal, but upon the evidence called before the tribunal below, subject to a power to receive further evidence. On an appeal by way of rehearing the rights of the parties must be determined by reference to the circumstances, including the law, as they exist at the time of the rehearing. But an appeal by way of rehearing does not call for a fresh hearing as does a hearing de novo; the appeal court does not hear the witnesses again: see Builders Licensing Board v. Sperway Constructions (Syd.) Pty Ltd (1976) 135 C.L.R. 616 at pp 619-620; Quilter v. Mapleson (1882) 9 Q.B.D. 672, at p.676; and Victorian Stevedoring and General Contracting Co. Pty Ltd and Meakes v. Dignan (1931) 46 C.L.R. 73 at pp 107-111.”

17.As an appeal under s113 of the Magistrates Ordinance is by way of rehearing on the evidence before the trial court supplemented by such further evidence as the intermediate appellate court may admit under its statutory power to do so, an appellate tribunal recognises that it does not enjoy the advantage of having received the evidence at first-hand which the magistrate enjoyed.  Nevertheless, the court is entitled, and indeed bound to come to its own conclusion about the facts of the case afresh as it is not reviewing the decision of the learned magistrate for possible error[8].

ANALYSIS

18.The Court intends to address the issues raised in the above grounds in the following order:

(i)  The applicability of OSHO or FIUO;

(ii)  The test under s24(1)(a) and 2(a) of OSHO:

(iii)  What amounts to a refusal?

(iv)  What is required to be proved and by whom for reasonable excuse?

(v)  The approach of a Court to the credibility of witnesses.

OSHO or FIUO or both?

19.The appellant company was convicted under s24(1) & (2) (a), of the OSHO.  S24 is as follows:

“24. Occupational safety officer may request certain information

(1) An occupational safety officer may request a person to provide—

(a) information that may identify the occupier of premises that the officer reasonably believes to be a workplace; or

(b) information that may assist the officer to determine whether or not a contravention of this Ordinance is being or has been committed,

but only if the officer reasonably believes that the person has that information and cannot reasonably obtain the information from another source.

(2) A person who—

(a) without reasonable excuse, refuses to comply with a request made to the person under subsection (1); or

(b) in response to such a request, provides information that the person knows or ought reasonably to know is false or misleading,

commits an offence and is liable on conviction to a fine at level 5.

(3) A person does not have a reasonable excuse for refusing to comply with a request made under subsection (1) only because provision of the information might tend to incriminate the person. However, neither the request nor the information is admissible in criminal proceedings (other than proceedings charging the person with having committed in relation to the provision of the information an offence under subsection (2))—

(a) if, before complying with the request, the person claims that the information provided might tend to incriminate the person; or

(b) if the person’s entitlement to make such a claim was not brought to the person’s attention before the request was complied with.

(4) The power conferred by this section may be exercised whether or not the occupational safety officer concerned is on premises entered in accordance with section 22.” (Emphasis added)

20.Under Ground 6, the appellant company submits that the OSHO is inapplicable in the circumstances of this case because the LD was required to carry out an investigation under the FIUO.  It was an investigation under the FIUO because the workplace in question was an industrial undertaking i.e. a construction site.  The OSHO did not apply to construction sites.  This argument is fundamentally flawed on the facts and in law.  It is flawed upon the facts because it is plain upon the wording of P3 & P5 that the LD was seeking to investigate the accident under both the OSHO and FIUO.  It said in terms at P3:

“The accident is being investigated by Occupational Safety Officer under [the] Occupational Safety and Health Ordinance (Cap 509)(“OSHO”) and Factories and Industrial Undertakings Ordinance (Cap 59) administrated by this department.”

At the stage that these requests were made, it is clear on the face of the documents that the LD was keeping its options open as this was a preparatory stage.  That was the evidence before the learned Magistrate[9] and she correctly found that the purpose of the request for documentation was to assess whether any offence had taken place either under the OSHO or under the FIUO.  It was open to her, as it is to this court, to find that was the intention of the LD at that time and that intention was clearly conveyed to the appellant company.  The appellant company submits the LD has no such power to investigate a fatal accident on a construction site under the OSHO.

21.The OSO (PW1 and then PW2) was tasked with investigating the accident.  As part of that investigation, he sought to exercise a power vested in him under s24 of the OSHO to require the production of documents.  There is no identical power in the FIUO even though the OSHO, when enacted also consequentially amended the FIUO and amended s4(2) & (2A).  There is a power under the FIUO to make enquiry under s4 of that ordinance, which states:

“S4(1) An occupational safety officer may exercise the following powers-…

(d) to make such examination and inquiry as may be necessary to ascertain whether the requirements of this Ordinance are complied with, and seize anything which may appear to be evidence of an offence against this Ordinance; …

(3) The powers conferred by this Ordinance on any officer shall be in addition to and not in substitution for any other powers which such officer may possess.” (Emphasis added)

22.Section 4(1)(d) limits the exercise of the s4 power to evidence of an offence under the FIUO just as s24(1)(b) does in respect of offences under the OSHO.  The offence creating sections of FIUO can be found at s4(3) specifically allows for the exercise of powers by an OSO conferred under separate legislation, which would necessarily include, but not be limited to, s24 of OSHO.  These powers vest in the officer regardless of whether he has declared to the recipient that he is exercising them.  By stating he seeks the production of documents under one power does not exclude his power to obtain them under separate legislation.

23.If that were not sufficient to shut the door on the appellant company on this point, s17 (4) of the FIUO states:

“17(4). A person who has been convicted or acquitted of having committed an offence under a provision of the Occupational Safety and Health Ordinance (Cap 509) in relation to an act or omission is not liable to be proceeded against for an offence under a corresponding provision of this Ordinance relating to the same act or omission.”

This section acknowledges, as does its mirror legislation under s39 of the OSHO, that a person who may have been the subject of prosecution under the FIUO (or OSHO) could also have been prosecuted for the same conduct under the OSHO (or FIUO) and therefore protects that individual against double jeopardy.  The ordinances are not considered mutually exclusive. This point was also addressed by McMahon J, albeit obiter, in HKSAR v China Overseas Building Construction Limited HCMA 448/2006.  That was a prosecution under s7(1)(a) & (2) of OSHO in respect of a construction site where a subcontractor had died whilst operating a concrete pumping machine.  McMahon J affirmed the trial court’s findings.  The learned Magistrate found Cap 59 and Cap 509 were not mutually exclusive of one another.  Indeed, she considered the issue most carefully and with reference to trite law, which does not bear repeating here[10].  I respectfully agree.  Ground 6 fails.

What amounts to a refusal?

24.At first blush, Ground 3 is closely linked to Grounds 1 and 2 in which the appellant company complains that the learned magistrate erred in rejecting the evidence of PW3 and DW1.  She did so in emphatic terms at §72 and 73 of the SOF.  Ground 3 is premised upon the supposition that, without such evidence, the learned magistrate was left to draw an inference from the evidence which remained which, the appellant company complains, was inadequate.  To make good that argument, Mr Halkes submitted[11] the learned Magistrate was left with only the evidence of PW1 and PW2 supported by P1‑13.  That evidence was insufficient to show to the requisite standard that the appellant company had refused to comply.

25.I disagree.  PW1 and PW2 were considered to be honest and reliable witnesses.  Mr Halkes does not suggest otherwise. There was no issue as to P1‑13.  Those documents clearly show a failure to comply.  This was evidenced by simply not responding to the s24 request under P3; late and limited compliance without explanation; a belated request for more time without explanation and a request for clarification only after four separate s24 requests.  Whether that amounts to a refusal is a question of the application of simple English.  Mr Halkes submits that his client never refused to comply.  He suggests there was ongoing compliance which negates any suggestion, or the implication of, his client having refused.  If he were correct, then any defendant who ekes out compliance with a request under s24 by complying on a piecemeal basis whilst also breaching all time limits, could never be prosecuted under this section. Another term for refusal is non-compliance.  At what stage does Mr Halkes’ “ongoing cooperation” become non-compliance?  It becomes non-compliance when they miss a deadline without reasonable excuse.  As no explanation was given at all until 10 December 2018 (and arguably this letter contained no actual explanation but rather a request for time), the appellant company was well outside not just one but two deadlines.  Indeed, even by 11 January 2019 there was still non-compliance.

Did the defendant have a reasonable excuse for his non‑compliance?

26.Section 24(2) of OSHO states:

“A person who—

(a) without reasonable excuse, refuses to comply with a request made to the person under subsection (1) …

commits an offence…”

On the basis that it is accepted that there is a burden upon the defence to raise reasonable excuse and thereafter for the prosecution to rebut it beyond reasonable doubt, there was no direct evidence before the court because the learned magistrate had rejected the viva voce evidence of both PW3 and DW1 in its entirety.  In that event she was required to have recourse to the remainder of the evidence i.e. the evidence of PW1 and PW2, the Admitted Facts [P1] and correspondence between the LD and the appellant company [P3-11].

27.The learned magistrate was extremely generous to the appellant company when she said in paragraph 63 of her Statement of Findings that: “…she had constantly and repeatedly asked for more time without giving any proper or reasonable explanation”.  No explanation for their failure to comply with the letter of 26 October 2018 [P3] was given at the time of receipt of the letter.  No explanation for their failure to comply with the letter of 26 October 2018 was given in the reply to the reminder letter of 21 November 2018 [P4].  Only partial and limited compliance was made under P8 dated 23 November 2018.  The appellant company was given a further (and generous) seven days to comply by reason of the LD letter of 28 November 2018 [P5].  It was only on 10 December 2018 [P9], and in breach of that timescale, that further limited disclosure was made with a request for further time, but once more without explanation.  That resulted in a further reminder from the LD on 20 December 2018 [P6], as there had been no intervening compliance, which resulted in yet another request for time [P10] and, thereafter, a request for clarification and yet more time [P11].  Yet again without explanation.  There is no evidence from which the issue of reasonableness could be raised.  The onus was upon the defence to do so.  Given the learned magistrate’s findings on credibility, that left the documentary evidence.  At best there appeared to be a complaint that the company was cooperating with other members of the relevant authorities and had been told that no action would be taken against it and was therefore frustrated by the enquiries being taken by the OSO.  Its attitude towards the OSO evidenced considerable disrespect.  More importantly, it never came clean.  It never disclosed it had no contract with Moreton and it never even sought to explain why it was being so dilatory.  This court has heard no explanation during submissions either.  The position which the appellant company now finds itself, is entirely to be laid at its own door.

Findings on credibility

28.It is a matter for Counsel as to how they advance their case and upon what evidence they rely.  It follows that it is a matter for Counsel to decide what to ask and when to ask it.  This is not part of the function of the trier of fact.  It is for the trier of fact to decide if they believe a witness or not.  It is for the trier of fact to assess whether they are sure of the evidence.  In respect of the defence case, it is for the trier of fact to decide whether it is or may be true.  As a consequence, a party may seek to rely upon a witness as a witness of truth and discover after examination in chief or under cross examination, that they can no longer do so. At that stage it is incumbent upon counsel to ask no further questions for the witness can no longer be relied upon as a witness of truth.  No more need to be done.  The witness needs not be turned hostile as was suggested by Mr Halkes. The only duty upon counsel calling such a witness is not to seek to rely upon such evidence in submissions unless they can properly do so.  This exercise is wholly independent of the view of the learned magistrate who is at liberty to form her own view of the witness and to accept or reject such evidence in whole or in part.  This exercise does not stand on all fours with admissions which contain both inculpatory and exculpatory parts.  If it had been possible to accept some rather than all of the evidence of PW3 and DW1, the learned magistrate could have done so but she did not.  She found them untruthful and unreliable.  She was entitled to do so having heard them give evidence before her.  This court will not interfere with that finding unless in doing so she can be said to have been plainly wrong[12].

CONCLUSION

29.As to Grounds 1 and 2, the simple point which the appellant company wished to make was that the learned magistrate should have placed weight on the evidence of PW3 where that evidence was in favour of the defence case and that there was no reason not to do so.  The learned magistrate was in a unique position to decide upon the truthfulness and reliability of PW3 and DW1 having heard them first hand.  She rejected their evidence and provided her reasoning.  I am not prepared to interfere with her finding in that regard.

30.As to Ground 3, the learned magistrate considered the undisputed documentary evidence and the oral evidence of PW1 and PW2, whom she found both truthful and reliable.  I have no reason not to adopt the same approach.  She identified the chronology of events, the lack of sufficient explanation and the dilatory manner in which the appellant company sought to respond to the legitimate request of the LD.  In so doing she gave reasons for rejecting the evidence given by PW3 and DW1 as to that response. It is incorrect to suggest that she failed to take their evidence into account.  She did so and then she rejected it.  It was against the backdrop of all of the evidence that she reached her conclusion upon the issue of refusal. I completely agree with her reasoning.

31.As to Ground 4, this has no merit whatsoever.  The learned magistrate was at great pains to address this issue and applied it to the facts.  She rejected, as do I, the suggestion that the LD had a duty to approach all other sources for a relevant document before it could approach the appellant company.  Given the nature of these investigations and the time frame involved there was no prejudice in seeking to approach more than one source at any given time.  There is no prejudice to the appellant company in providing the relevant documents in this day and age and, if it did not possess such a document, to inform the LD of that fact.  Instead it deliberately avoided compliance, when these documents were either within their possession or did not exist.  I find it extremely difficult to justify the actions of the appellant company in not informing the LD that e.g. there was no contract with Moreton, if indeed that was the case.

32.As to Ground 5, this argument also has no merit.  This is clearly a strict liability offence into which the appellant company sought to insert an element of mens rea.  The learned magistrate gave a clear explanation as to the nature of this offence and the burden upon the defence which it failed to satisfy.

33.As to Ground 6, this should not have been advanced upon appeal and it is noteworthy that it has fallen from first to sixth place in the appellant’s arguments.  It was not forcefully argued before me and quite rightly so.  It has no merit.

34.The Magistrate correctly applied the relevant legal principles, analysed the facts, gave her reasons and addressed the credibility of the witnesses.  I find no fault with her reasoning which was carried out diligently.

35.This appeal is dismissed on all grounds.  The sentence of the Magistrate stands.  There was no merit in this appeal, costs will be to the respondent.

Mr Derek Lau, SPP, of the Department of Justice, for the respondent

Mr Adrian J Halkes and Ms Shirley C Hung, instructed by Pinsent Masons, for the appellant