Texwood (Jeans) Garment Factory Ltd. v. The Queen
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CACC000195/1972 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 195 OF 1972 -----------------
----------------- Coram: Huggins, J. Date of Judgment: 24th May, 1972. ----------------- JUDGMENT ----------------- 1. This is an appeal against conviction upon a charge laid upon regs. 9(1)(e) and 45(c) of the Factories and Industrial Undertakings Regulations. The material part of these regulations read:
Condition (e) of reg.9(1), unlike Conditions (a), (b) and (d), bears no logical relationship to the substance of the paragraph: to talk of the interval's conforming with a condition that no woman shall be required or permitted to work during any such interval is nonsense. The condition relates not to the nature of the interval but to the conduct of the proprietor in abstaining from requiring or permitting women employees to work during the interval. One would have expected Condition (e) to be a substantive regulation forbidding the proprietor from "requiring or permitting ......". However, it is sufficiently clear that that was what was intended by the draftsman of the regulation, although his clumsy language has made the drafting of an appropriate charge no easy matter. 2. The charge as drafted was in these terms
It was no doubt intended to allege that the women were employed and were in fact required or permitted to work in breach of the condition. Indeed, I am quite satisfied from reading the record of the proceedings before the learned magistrate that everyone in the court below so understood the allegation and that the argument then turned solely upon the question whether work during the interval was "permitted". That was a question which did not arise at all upon a strict reading of the charge: the words "employed .... to work" would perhaps indicate a requirement that they work but could not possibly suggest a permitting to work. It seems, therefore, that the purpose of particulars being to indicate to the defendant what is the substance of the charge against him the particulars in the present case fulfilled the purpose for which they were given although they were understood in a sense which a strict interpretation would not justify. 3. The learned magistrate stated the facts found by him in these terms:
The only dispute upon the appeal has been as to the last two findings. A Labour Inspector testified that he entered the factory and "met a gentleman who said he was the person in charge of personnel affairs. He said his name was YAM Wai-kwong ...". Counsel submits that that evidence does not support a finding that Mr. Yam was "in charge of personnel", but that seems to me to be basing an argument upon a distinction without a difference. Then it is submitted that a person in charge of personnel or personnel affairs may have no responsibility for ensuring that the conditions as to rest intervals are observed. He would then be a person in charge of only some personnel affairs, and I think there was prima facie evidence that he was responsible for the observation of these conditions. However, for reasons which will appear from what I shall say in relation to the sixth finding I do not think it matters whether Mr. Yam was or was not responsible. 4. There was no evidence that the women were "required" to work during the rest interval: the contention throughout was that the company "permitted" them to work during the rest interval. The learned magistrate cited several decided cases and came to the conclusion that by not taking reasonable steps to prevent the women from working the company permitted them to work. I entirely agree. It was not enough to display on the wall of the factory, as had been done, a notice indicating the times of the rest intervals. The object of the Regulation is to prevent the strain which may result from over-long periods of continuous work. It is aimed at protecting women employees not only against exploitation by their employers but also against their own ignorance and foolishness. That is not to say that employers must be prepared forcibly to prevent their employees from working, but they must take reasonable steps to ensure that employees do not work and it is obvious that they cannot do that unless they have a responsible person in attendance to ascertain whether the condition is being observed and to take reasonable steps if he sees any threatened breach of the condition. Even if Mr. Yam had not been shown to be a person responsible for ensuring the condition was observed, by showing that work was in progress the Prosecution made out a prima facie case that reasonable steps had not been taken by the company through any of its agents to prevent such work. The Appellant adduced no evidence and it was inevitable that upon the substantially unchallenged evidence for the Prosecution the learned magistrate should convict. 5. The appeal is dismissed. 24th May, 1972. Representation: |