R. v. Fanta Construction Co. Ltd.

CACC000199/1996

IN THE COURT OF APPEAL

1996, No. 199
(Criminal)

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Coram: Hon Power, Ag. C.J., Mortimer and Mayo, JJ.A. in Court

Date of hearing: 6 September 1996

Date of judgment: 6 September 1996

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The applicant seeks leave to appeal against its convictions for two offences of permitting substances to be loaded on a ship for dumping in the sea contrary to s1(1)(d) and 1(6) of Schedule I of the Dumping at Sea Act 1974 (Overseas Territories) Order 1975. Both offences were alleged to have occurred on 16 January 1995 which date preceded the coming into effect of a Hong Kong Ordinance enacting similar provisions to the English legislation. The applicants were fined $180,000 on the 1st offence and $90,000 on the 2nd.

2. There was no real dispute on the facts.

3. Gammon was the main contractor of the construction project known as the Western Harbour Crossing - Sai Ying Poon Interchange Route 7 and approach. They subcontracted some of the excavation work to the defendant who in turn subcontracted part of their work to a company called Advance Engineering Ltd.

4. On the day in question three officers from the Environmental Protection Department attended at the site where lorries were loading excavation material into barges.

5. Under the terms of the relevant licence excavation material had to emanate from the area specified in the licence and it was incumbent upon the licence holder i.e. the applicant, to exercise due diligence to ensure that the requirements of the licence were adhered to.

6. It was evident from the observations undertaken by the Environmental Protection Department Officers that material from another construction site had been included in the material being loaded onto the barges. Six errant lorries made 10 non-conforming trips.

7. At the hearing before HH Judge Chua the issue which had to be determined was whether the defendant was able to avail itself of the statutory defence provided by s1(8)(b):

" It shall be a defence for a person charged with an offence under (b) above to prove -

(b) that he acted in reliance on information given by others without any reason to suppose that the information was false or misleading, and ... that he took all such steps as were reasonable open to him to ensure that no offence would be committed."

8. Clearly it was necessary for the judge to consider the whole situation prevailing at the time and have regard to the system instituted and adopted by Advance Engineering to ensure due compliance.

9. Mr Wong Chak Ming of Advance described the system adopted in conjunction with the applicant.

10. Tickets in triplicate with serial numbers were issued and it was the responsibility of Advance Engineering to give two copies of the said tickets to lorry drivers when they left the site with a load for delivery to the jetty. The remaining copy would be retained by the person issuing the tickets.

11. The lorry driver would surrender one of the copies he held to an employee of the defendant at the jetty when the material was loaded onto a barge. The third copy would be retained by the driver and used by him to claim remuneration for the trip he had made. The tickets would be reconciled at the conclusion of operations each day.

12. In addition to this Mr Li Hoi, an employee of the applicant who was stationed at the jetty would visually scrutinise the fill. He said that it should be possible to tell from the colour of the material whether it came from the proper source. He had been satisfied that the material had come from the tunnel on the day in question.

13. The first issue which has to be determined is whether the liability imposed under the ordinance is strict liability or not. The judge, for the reasons she gave came to the conclusion that it was not. In helpful submissions prepared by Mr Saw for the Crown he argues that the judge was in error in reaching this conclusion.

14. The Privy Council considered the criteria to be adopted in determining whether or not strict liability was imposed in respect of a criminal offence at p14 of Gammon Ltd. v. Attorney General of Hong Kong [1985]1 AC 1

" In their Lordship's opinion, the law relevant to this appeal may be stated in the following propositions (the formulation of which follows closely the written submission of the appellants' counsel, which their Lordships gratefully acknowledge): (1) there is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence; (2) the presumption is particularly strong where the offence is "truly criminal" in character; (3) the presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute; (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; (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."

15. If this test is adopted it is difficult to see how the liability imposed by the order cannot be strict liability. Quite clearly the object of the legislation is to impose a duty upon parties who perform work of this nature and who are given the privilege of dumping material at sea to exercise a degree of vigilance to ensure that a measure of control is maintained. In this connection it is significant that s1(8)(b) earlier cited in this judgment is framed in the way it is. This provides that a burden attaches to the person charged with an offence to ensure that all reasonable steps are taken for the terms of the licence to be complied with. This is undoubtedly indicative of the liability being strict liability.

16. What constitutes necessary diligence will depend upon the particular circumstances of each case.

17. The system referred to in the evidence was jointly operated by the applicant and Advance Engineering.

18. It could fairly be described as a somewhat haphazard system and insufficient controls were built into the system to prevent obvious abuse of the type which was encountered.

19. What was required was an effective monitoring system under which a large measure of supervision could be exercised over the drivers of the lorries transporting the material to the jetty.

20. It may even be the case that direct control needed to be exercised over the drivers and that a casual system such as was adopted by the applicant did not meet the requirements of the situation. This seems to be germane in the present case as in all likelihood these offences occurred as a result of the inadvertence or misconduct of the casual worker issuing tickets.

21. The judge was right to hold that the applicant had not made out of defence pursuant to s1(8)(b) and accordingly the conviction was both safe and satisfactory. The application for leave to appeal against conviction has to be dismissed and is dismissed.

Sentence

22. As was noted by the judge the applicant has a bad record in respect of these offences. The imposition of modest fines has acted as an insufficient deterrent to persuade the applicant to mend its ways and prevent a repetition of these infractions.

23. There was a paucity of evidence concerning the financial implication of these contraventions and it is accordingly difficult to say that the judge was wrong in assessing fines at the level she did.

24. While the fines were undoubtedly heavy fines we see no reason to interfere with them. This application is also dismissed.

Representation:

Mr D.G. Saw, SACP & Denise Chan for Crown Prosecutor

Mr Bernard Mak (Lai & Leung) for Applicant