HKSAR v. Birdland (HK) Ltd.

HCMA000136/1999

1999, No. MA 136

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 136 OF 1999

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Coram : The Honourable Mrs Justice V. Bokhary in Court

Date of Hearing : 21 May 1999

Date of Delivery of Judgment : 25 May 1999

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J U D G M E N T

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1. This is an appeal against a conviction of an offence under section 52(1) of the Public Health and Municipal Services Ordinance, Cap. 132 ("the Ordinance") which provides that:

"If any person sells to the prejudice of a purchaser any food or drug which is not of the nature, or not of the substance, or not of the quality, of the food or drug demanded by the purchaser, he shall, subject to the provisions of section 53, be guilty of an offence."

2. The Appellant is the company which operates the Kentucky Fried Chicken fast food chain in Hong Kong. This chain includes premises in D'Aguilar Street. A charge was laid against the Appellant under section 52(1) of the Ordinance, alleging that on 20th March 1998 at its D'Aguilar Street premises it sold to a purchaser, one Miss Chu Wing Yee, an article of food, namely a fried chicken wing, which was not of the substance of the food demanded by the purchaser in that the food contained the remains of a cockroach.

3. On 12th January 1999, K.A. Browne Esq. sitting in the Magistrate's Court at Western convicted the Appellant.

4. Two grounds of appeal have been advanced. I will deal with them in reverse order. The first sentence of Ground 2 reads:

"The learned Magistrate failed to consider either adequately or at all the defence case namely, that the prosecution had not proved beyond reasonable doubt that the food sold by the defendant contained the cockroach at the time of sale."

5. There then follows a number of matters which it is said did not receive proper consideration by the Magistrate.

6. Despite the very able arguments of leading counsel for the Appellant, I am satisfied that the Magistrate has considered all relevant circumstances with all due care.

7. I make specific mention of one of these matters because so much reliance was placed on it in the argument for the Appellant. It is this. In delivering his verdict in court at the end of the trial, the Magistrate said:

"I accept that the standards of hygiene at your company are very high and the process you adopt makes the introduction of a cockroach to your food highly unlikely."

This does not assist the Appellant because the case was not about whether the chicken wing was cooked with the cockroach. It was about whether it was sold with the cockroach. After cooking, the chicken wing was wrapped before being sold. It was not sold straight out of the cooking utensils.

8. By far the most important witness was Miss Chu, who gave evidence as PW1. In his Statement of Findings, the Magistrate said:

"I accepted PW1 as a reliable and credible witness. She was cross-examined at length as to her movements and actions after purchasing the chicken wing. I accepted that after making her purchase she returned to her place of employment with the chicken wing as packaged by the staff of Kentucky Fried Chicken. I accepted her evidence that when she opened the packaging for the first time she observed the cockroach."

9. I am satisfied that the Magistrate was entitled to come to that conclusion, that he came to it properly and that it entitled him to convict subject to the question whether Ground 1, to which I now turn, is made out. This ground reads as follows:

"There was a material irregularity in the course of the trial in that the learned Magistrate failed to consider the defence available to the appellant pursuant to Section 53(3) of the Public Health and Municipal Service Ordinance Cap.132."

10. Section 53(1) of the Ordinance provides that:

"In proceedings under section 52 in respect of any food or drug containing some extraneous matter, it shall be a defence for the defendant to prove that the presence of that matter was an unavoidable consequence of the process of collection or preparation."

11. The decision of the House of Lords in Smedleys Ltd v. Breed [1974] 2 All ER 21 is directly on point. It deals with a prosecution under section 2(1) of the Food and Drugs Act 1955 (which is identical to section 52(1) of the Ordinance) and the defence under section 3(3) of that Act (which is identical to section 53(3) of the Ordinance). The House of Lords held that in order to establish a defence under section 3(3) it was necessary to show that the presence of the extraneous matter was a consequence of the process of collection or preparation of the food and that the consequence could not have been avoided by any human agency; it was not sufficient for the defendant to show that he had taken all reasonable care to avoid the presence of the extraneous matter.

12. In my judgment, that applies equally to the defence under section 53(3) of the Ordinance.

13. Not only was that defence not raised at the trial. There was no evidence on which the Magistrate could have found either that the presence of the cockroach was a consequence of the process of collection or preparation. Nor was there any evidence on which he could have found that its presence could not have been avoided by any human agency.

14. In such circumstances, there was nothing for the Magistrate to consider under section 53(3) of the Ordinance, and Ground 2 also fails.

15. The appeal is therefore dismissed.

Representation:

Mr. Plowman, S.C., instructed by M/s Lo, Wong & Tsui for the Appellant

Mr. Hayson K.S. Tse (of the Department for Justice) for the Respondent