The Queen v. Chan Pui Kay

HCMA001079/1991

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1079 OF 1991

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BETWEEN

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Coram: Hon. Hooper, J. in Court

Date of hearing: 17 January 1992

Date of delivery of judgment: 17 January 1992

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J U D G M E N T

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1. On the 24th October 1991, the appellant was convicted of a charge of allowing an object to fall.from a height, contrary to s. 4B (1), of the Summary Offences Ordinance, Cap. 228 and fined $500.

2. The conviction came after a short trial at which the appellant was represented by a solicitor, Mr T.H. Kwan. The particulars of the offence were set out in the charge sheet as follows :-

"CHAN Pui-kay, you are charged that on the 18th day of August, 1991, at Gallim Christian Church, 3/F, No. 182, Main Road, Yuen Long, New Territories, in Hong Kong, you, being the person in charge of the said church, did allow to fall some glass fragments from the said building to the injury of a person in a public place, namely, female CHOW Yeuk-yee."

3. In his statement of findings, the learned Magistrate set out the prosecution case as follows :-

"It was not disputed that on 18th August 1991, at about 1:30 p.m., some glass fragments fell from the window of the premises at 3rd floor, 182 Yuen Long Main Road, Yuen Long. A pedestrian was injured. Medical evidence shows that the pedestrian had a 2 cm superficial cut wound in the right arm.

It was also agreed that Police Constable 47796 went to the 3rd floor, 182 Yuen Long Main Road to investigate almost immediately after the incident took place. The said premises is a Christian Church. The defendant was found alone in the premises. After opening the door, the defendant said that he was the person in charge. Indeed, he was one of the directors of the limited company that established the church and one of the deacons responsible for the church.

Evidence, which was not disputed, further shows that near the window (where its glass panes had shattered) a projection screen which was hanging on the wall above the window had fallen. One of the screws used to secure the projection screen to the wall was found lying on the floor. It does not require any figment of imagination to appreciate that obviously the screw came off allowing the projection screen to fall and hit on the window panes."

4. It is clear that the magistrate was accepting that all the facts in the second paragraph were agreed.

5. With the greatest respect to him, the facts set out in the last sentence of the second paragraph were not agreed at the trial. Indeed it was put to PW1 in cross-examination that the appellant's answer to PW1's question was that he was one of the deacons, but PW1 replied "He said he was one of the person responsible for the church". PW1 was then asked "Did you not tell him that better put down one person in charge otherwise inquiry into other persons in charge? To this PW1 replied "Disagree". This does not indicate that the defence was admitting that the appellant was accepting that he was "one of the deacons responsible for the church".

6. The appellant, when he was giving evidence, testified in cross-examination that when the police officer came to the premises he told the police officer, "after hesitation", that he was the person in charge when first asked. He did not give evidence nor was he asked in cross-examination about the responsibilities of a deacon in the church. Neither was he asked about the responsibilities of the directors of the company. The appellant in his evidence said that he did not know whether he was "the person in charge".

7. At the close of the case, Mr Kwan submitted that there was positive evidence that the defendant did not know of the state of the projection screen. Mere presence did not render a person liable, and there were no reasonable grounds for the defendant to believe the screen would fall. He argued that the construction site cases were distinguishable. No one would suspect that a screen properly secured would fall. The directors were not liable for the offence of the church. He adopted his submissiom for no case to answer which was that there had at the close of the prosecution case been no evidence that the defendant had knowledge of the object falling, and that there was authority to the effect that a defendant must have knowledge or deliberately turn a blind eye to that state of affairs. In this respect, he referred to passages from the Textbook of Criminal Law by Glanville Williams, Blackstone's Criminal Practice and Smith and Hogan's "Criminal Law".

8. The learned magistrate rejected these submissions with the.following words :-

"Satisfied beyond reasonable doubt of offence committed. Find as a matter of law and fact that defendant should be held liable though other people may be liable as well. Although have sympathy forward defendant, convicted defendant as charged."

9. He did not particularise what facts he had found or what propositions of law he had applied to those facts.

10. In his statement of findings, however, the magistrate dealt with the defence case as follows :-

"The defence case, as I understand it, was based on two main grounds. Firstly, it was said that the defendant did not 'allow' the projection screen or glass fragments to fall; it was a pure accident. Secondly, it was contended that the defendant was not the person in charge, that the church was run by a group of people including the defendant.

Counsel for the defendant also raised issue as to what was actually said by the defendant under caution. As it turned out, the defendant's own evidence largely supported the evidence of the investigating officer. In any event, I did not attach weight to the statement made by the defendant under caution.

11. Reasons for Verdict

Dealing with the point about person in charge. the evidence is overwhelming that the defendant was the person in charge of the permises at the time. It does not matter whether there were other persons in charge for that could only affect the number of persons who may be held responsible and could not in any way diminish the responsibility of the defendant.

The question as to whether the defendant 'allowed' glass fragments fall is a difficult one. Section 4B (1) of the summary Offences Ordinance, Cap.228 reads,

'if anything is dropped or allowed to fall from any building to the danger or injury of any person in or near a public place, the person who drops that thing or allows it fall commits an offence ...'

Obviously, a person who drops something in this context is allowing it to fall, so 'allow' in this paragraph must mean some constructive or imputed mens rea. In my view, 'allow' means, inter alia, allowing a state of affairs to exist which became the cause of the full of the glass fragments. The state of affairs is the insecure positioning of the projection screen above and near the window. The defendant, as much as his co-directors and co-deacons, allowed that state of affairs to exist by not having the projection screen secured properly at all times.

The offence having been proved beyond reasonable doubt, the defendant was convicted as charged."

12. Mr Andrew Li for the appellant stresses the fact that it was never agreed that the appellant was "one of the deacons responsible for the church". His fourth ground of appeal was that the magistrate was wrong in finding that the appellant was the person:in charge. However, even if the appellant was the person in charge, he would only be liable as a director of a limited company if it were proved that he fell within the provisions of the s.84 of the Interpretation and General clauses Ordinance. That provides :-

"Liability of directors, etc

Where a person by whom an offence under any Ordinance has been committed is a company and it is proved that the offence was committed with the consent or connivance of a director or other officer concerned in the management of the company, or any person purporting to act as such director or officer, the director or other officer shall be guilty of the like offence."

Mr Li submits that s.4B (1) imposes liability upon the person who physically drops the objector physically allows the object to fall, such as a workman fitting the screw or a window cleaner who lets his bucket fall. Servants of the company using the premises do not become liable, because they are alone at the company's premises and ostensibly in charge of the premises when the object falls. The section creating the charge does not refer to "the person in charge". The magistrate was therefore wrong in basing the conviction upon a finding that the defendant was in charge of the premises. It is arbitrary to say that the defendant, just because he was a director found in the premises, should be guilty of the offence. There was no intention in the legislation to place responsibility on the person who had no knowledge.

13. I do not propose to rehearse his arguments on ground one because I do not consider that there is anything in this ground. His second and third grounds both relate to the construction to be placed upon the word "allows". He takes issue with the magistrate's finding that this word must mean some constructive or imputed mens rea. He also disputes the view expressed by the magistrate that it means allowing a state of affairs to exist which became the cause of the fall of the glass fragments.

14. Relying upon the authorities referred to in Smith and Hogan's Criminal Law (6th edition), at p.124, under the heading "Permitting, Suffering, or Allowing", he submits that the word "allows" must mean knowledge of a state of affairs which exists or turning a blind eye to that state of affairs. It is not enough that there are reasonable grounds for suspicion that the state of affairs exists, The question is whether the defendant in fact suspects that the state of affairs exists.

15. Mr Li also refers to the Textbook of Criminal Law by Granville Williams (2nd edition) at pp. 126 and 127, and complains that the magistrate failed to consider these points. The appellant had merely gone back to the premises to clean up the premises and had no idea who fixed the screen and never thought the, screen would drop. He had no knowledge on the subject and there was nothing to support any argument that he was aware of the state of affairs which existed or turned a blind eye to them.

16. Although the prosecution had apparently placed some reliance upon subsections (2) and (3) which deal with the liability of contractors, Mr Li submits that contractors are in a very different position.

17. Mr Leung for the respondent points out in respect of ground 4 that it was the defendant who was charged and not the company. In other words the defendant was the person who was in a position to allow things to happen or disallow things to happen. The offence was one of strict liability and s. 84 of the Interpretation and General Clauses Ordinance had no bearing on the matter because that dealt with offences committed by the company.

18. So far as grounds 2 and 3 are concerned, he argues that there is no escape route provided in subsection (1) as there is for contractors in subsections (2) and (3). Mens rea goes to the knowledge of the existence of the physical facts. The appellant knew about the existence of the projection screen hanging on the wall and that knowledge was sufficient. He relies on the propositions in the speech of Lord Scarman in Gammon (Hong Kong) Ltd and others v. Attorney General of Hong Kong, as giving support to his submission that the offence is one of strict liability.

19. In my judgment, the offence created by this subsection is one of strict liability as the subsection comes clearly within the propositions enunciated by Lord Scarman.

20. However, the use of the word "allows" does indicate an intention that there should be some knowledge required on the part.of the offender.

21. In Gammon, the 2nd appellant was charged with carrying out works, and the 3rd appellant with permitting the works to be carried out in a manner likely to cause risk or injury or damage contrary to s.40 (2B) (b) of the Building Ordinance (Hong Kong). Their Lordships in the Privy Council agreed with the Hong Kong Court of Appeal's comment "We would therefore hold that the word 'permitting' in s.40 (2B) (b) does not by itself import mens rea in the sense of intention to cause a likelihood of risk or injury on knowledge that such likelihood, would result but does require that the defendant shall have had the power to control whether the actus reus (the carrying out of the works in the manner which in fact causes a likelihood of risk or injury) shall be committed or not."

22. In my judgment, it is not an essential ingredient of the offence under s. 4B (1) that the guilty person should be the person in charge of the premises. Neither does it necessarily follow that the person "in charge" of the premises should be held liable. It is the power to control the state of affairs which led to the falling of the glass that is important. There will be no difficulty in respect of a person who physically drops an object, or by negligence or recklessness allows an object with which he is working to fall. Where, however, a person is not so closely related to the incident, his liability should depend upon whether he had responsibility for or control over the state of affairs which led to the falling. Whilst it is obvious that somebody in the company must have had the power to control whether the projection screen was properly maintained and that the omission of that person to attend to this directly led to the glass falling and that this made the company itself liable, it does not necessarily follow however on the evidence which was accepted by the magistrate that the appellant had this power to control. Unless he was the officer in the company responsible for the maintenance of this projection screen and the windows, or unless he had some control over the person who had that responsibility, he should not be held liable under this subsection, for allowing the glass to fall, unless liability could be brought home to him under s.84 of the Interpretation and General Clauses ordinance referred to above.

23. As the magistrate appears to have based his decision on the agreed fact that the deacons were responsible for the church, when there was no such agreed fact, and as there was no finding as to what the appellant meant when he admitted that he was "the person in charge" when it was open to the construction that he intended to say that he was the only representative of the company personally in the premises at the time, I allowed the appeal and set aside the conviction and sentence.

Representation:

Mr Paul Leung, Crown Counsel, for Crown

Mr Andrew Li instructed by M/s Kwan & chow for appellant