Texwood (Jeans) Garment Factory Ltd. v. The Queen

Case No.CACC 307/1972

Court

Court of Appeal

Date—

Judge—

Case Document

100%Judiciary

CACC000307/1972

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO.307 OF 1972

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BETWEEN
	TEXWOOD (JEANS) GARMENT FACTORY LTD.	Appellant
	and
	THE QUEEN	Respondent

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Coram: Huggins, J.

Date of Judgment: 24th May, 1972.

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JUDGMENT

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1. The appellant company appeals against two convictions under regs. 9(1) (e) and 45(c) of the Factories and Industrial Under takings Regulations, one relating to the employment of women and one to the employment of young persons.

2. The company pleaded Not guilty to both charges and with the consent of the appellant company the summonses were heard together. The findings of the learned magistrate are stated in these terms:

"	1. 2 Labour Inspectors (P.W.1 and P.W.2) visited Defendant's factory at 23-27 Tai Yau Street on 4th floor at 4.40 p.m.
	2. Inside the factory 334 women and 3 young persons were operating power driven sewing machines making trousers and jackets.
	3. While the Inspectors were taking down particulars a gentleman named Lau Fung came out from the office of Company which office was situated near the working area and partitioned off from it.
	4. Mr. Lau Fung was the person in charge of the factory and responsible for what is done in the factory.
	5. Mr. Lau Fung must have heard the noise of the machinery being used by the women and young children mentioned.
	6. The women and young girls should receive a rest break between 4.30 p.m. and 5 p.m.
	7. The Defendant is an Incorporated Company.
	8. The Defendant did nothing (apart from displaying the Notice relating to breaktimes Exh.P.1) to prevent the workers from working during the meal break."

3. The first point taken on behalf of the appellant company is the same as that taken in Criminal Appeal No.195 of 1972, in which I have just given judgment. The only substantial differences between the two cases were that the premises were a factory at a different address and that the Labour Inspector found in these premises a person who is admitted to have been in charge of the factory. What I said in the other case sufficiently indicates my view of the law relating to this first point and there is nothing I can usefully add.

4. The next submission made is that there was no evidence to support the finding that 334 women were operating power driven sewing machines in the factory. On the record before me I think that is right. The Inspector said:

"I saw 334 women and three young persons working. The young persons were operating power driven sewing machines. The women workers were sewing trousers and jackets".

Later he said:

"I saw a large number of power driven sewing machines there producing garments".

Even had there not been an answer in cross-examination that there were some men also working there I doubt whether it would have been a proper inference that most of the "large number of power driven sewing machines" were being tended by the women, but, as it is, one clearly cannot be satisfied beyond reasonable doubt that the women were not plying needle and thread by hand. However, the finding was only indirectly relevant: it is conceded that the women were working and that this evidence was led merely with a view to showing that they must have made such a noise in performing their work that the person responsible for enforcing the Regulations would necessarily have been aware that the women were working. In my view although the finding was material to the reasoning of the learned magistrate the conviction can be supported without reference to it. Similarly the finding that the person in charge of the factory "must have heard the noise of the machinery being used by the women and young children", which is also challenged, is not a necessary foundation for the conviction.

5. Complaint is then made that in reaching his conclusion that the appellant company was guilty of the offences the learned magistrate took into consideration the fact that the company had "a number of previous convictions for the same type of offence". The form of the Statement of Findings which has been placed before this Court certainly gives some basis for argument, because the previous convictions are referred to in a paragraph which begins with a passage related to the guilt or innocence of the Defendant. It must, of course, be remembered that the Statement of Findings was not in this case prepared before the verdict was announced. It is clear from the notes of proceedings that no reference to previous convictions was made in the course of the present case until after the learned magistrate had entered his verdict. Nevertheless the learned magistrate may well have remembered such previous convictions, because the Information to which Criminal Appeal No.195 of 1972 relates was heard a month before the day on which the verdicts were given upon the Informations now in question. The paragraph complained of reads:

" This situation appears also to fall squarely into the passage from Houston v. Buchanan previously referred to in these findings. It is clear that neither the Company nor the manager nor anyone else took any steps at all to prevent the employees from working during a rest period in spite of a number of previous convictions for the same type of offence."

The words "This situation ......" must relate back to the previous parts of the Statement of Findings where the learned magistrate was considering the meaning of "permitted", an issue clearly relevant to verdict and not to sentence. It is argued on behalf of the company that the rest of the paragraph is also clearly directed to verdict rather than to sentence, for it is concerned with the alleged duty to take steps to prevent the employees from working. On behalf of the Respondent it is contented that the paragraphing of the passage is at fault and that the extent of the duty to take steps to prevent employees from working during a rest period could not, as a matter of guilt or innocence, be altered by reason of the existence of previous convictions and one should not assume the learned magistrate wrongly thought that it could: in the next paragraph the learned magistrate without any introduction proceeds to deal with matters which are beyond doubt related to penalty. The onus of proving misdirection is upon the Appellant (Norman v. King ⁽¹⁾), but I think the Appellant has in the present case established a misdirection upon a balance of probabilities. Yet there can be no doubt that the learned magistrate would have convicted even had he not, as it appears, sought from the appellant company a different standard of care in preventing breaches of the conditions from that, imposed by the statute, on persons with no previous convictions. The learned magistrate found that the company took no steps at all to prevent the employees from working. Again, that finding was not justified by the evidence, because there was evidence of the posting of the notice and there was no evidence that no other steps at all had been taken. However, there was prima facie evidence that "all reasonable steps" had not been taken and I do not think that the misdirection has led to any substantial miscarriage of justice. The basic facts were never seriously in dispute and the learned magistrate's knowledge of the previous convictions can have had no prejudicial effect in relation to the finding of those facts.

6. For these reasons the appeals are dismissed.

24th May, 1972.

Representation:

(1) 1946 1 All E.R. 339, 341.