The Attorney General v. Asia Electronics Company Limited
Read the full judgment text of CACC 334/1974 on BabelCite. This Court of Appeal judgment.
1. This is an appeal by the Attorney General by way of case stated against the decision of a magistrate dismissing an Information preferred on behalf of the Commissioner of Labour against a Limited company under reg. 31 of the Factories and Industrial Undertakings Regulations. The company has not been represented before me and, unfortunately, I have heard no argument upon its behalf. However, the matter seems to me to be abundantly clear.
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CACC000334/1974 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 334 OF 1974 -----------------
----------------- Coram: Huggins, J. Date of Judgment: 28th June 1974. ----------------- JUDGMENT ----------------- 1. This is an appeal by the Attorney General by way of case stated against the decision of a magistrate dismissing an Information preferred on behalf of the Commissioner of Labour against a Limited company under reg. 31 of the Factories and Industrial Undertakings Regulations. The company has not been represented before me and, unfortunately, I have heard no argument upon its behalf. However, the matter seems to me to be abundantly clear. 2. The Information alleged that the exit of a factory flat had been blocked by two stacks of cartons: one being 3' x 3' x 4' high and the other 3' x 3' x 8' high. The doorway was 4' wide and 64' high. It is clear that the magistrate was satisfied that there was evidence of an obstruction but he dismissed the Information on the basis that this was not a means of escape within the meaning of the regulation. The material words are:
There is a side-note to that regulation which reads:
3. The first reason the learned magistrate gave for his view that this exit was not a means of escape was that the side-note indicated an intention to refer to exits provided specifically for the purpose of escape from fire and that this particular exit was not one provided specifically for that purpose but was one which could have been used as a normal means of ingress and egress. The learned magistrate so concluded, as he said, "in accordance with well-settled principles of interpretation". That is to say, he took the view that he was entitled to refer to the marginal note in order to ascertain the meaning to be attributed to the term "means of escape in case of fire". With respect to him this matter was formerly by no means well settled. I regret to say that in the years 1963 to 1965 I was personally involved in a disagreement with one of my brother judges on this very point: see LEUNG Yuen v. Reg. 1963 H.K.L.R. 154, LAI Nui v. KO Bo-chun 1964 H.K.L.R. 378, IP TANG Hon-ying v. CHU Hin-chun 1965 H.K.L.R. 136 and In the matter of the Canton Trust & Commercial Bank Ltd. (No. 1) 1965 H.K.L.R. 450. It is sufficient to say that I took the view that marginal notes in an Ordinance should not be looked at because they were not part of the statute as enacted by the Legislature and were not the subject of amendment in committee of the Legislative Council. It is not without some satisfaction that I find some support for that view of the law in the speech of Lord Reid in Chandler v. Director of Public Prosecutions 1964 K.C. 763, a case which was not drawn to the attention either of myself or Scholes, J. in the cases to which I have referred. However, the matter is decided now by the Interpretation and General Clauses Ordinance, s.18(3) of which says that
That provision did not appear in the previous Interpretation Ordinance and it came into force on 31st December 1966 (Ord. N. 31 of 1966). I take the provision to mean that for the purposes of interpretation a court should not look at the marginal note. 4. That being so I think, with respect, that the learned magistrate's first reason for deciding as he did was wrong, and I approach the case by asking myself What do these words mean in ordinary language? Thereafter I must look, as did the learned magistrate, at the other provisions of the Ordinance to see whether in this particular legislation the words have been used in a special way. I have no doubt whatever that in ordinary language "means of escape" means any route by which a person in a building my escape from that building to a place of safety in case of fire, and if that be the correct interpretation then clearly these cartons were blocking "a means of escape". 5. I ought perhaps to mention that I obtain some support for the view which I take from the decision of the Court of Appeal in Horgan v. Birmingham Corporation 1965 63 L.G.R. 33 where the question was whether a fire-screen at the top of a staircase was a means of escape within the meaning of another statute. That was the manner in which the case was put before the Court of Appeal and the manner in which it was answered, but in truth it seems to me, with respect, that what the court there decided was that the "means of escape" was not the fire-screen but the safe route which the provision of a fire-screen itself provided. There were neighbouring premises with a landing between and a staircase coming up to the landing. The corporation, under powers in the Housing Act 1961, required the owner to put a fire-screen at the top of the staircase. The purpose was to enable persons to go from one of the flats to the apposite flat across the landing in case of fire. The danger was that if there were a fire and no fire-screen the landing would be smoke-logged and people would not be able to cross it. The effect of the decision was that by providing the fire-screen the landlord was in fact providing a means of escape. In other words the means of escape was the route from the one premises cross the landing into the other. In the present case the "means of escape" is the way from the promises, through the doorway and out of the premises - and it was that which was unlawfully blocked by the Defendants. 6. I turn then to the other arguments which found favour with the learned magistrate. He referred to para. 1(f) of reg. 33, which provides that
The learned magistrate said that that regulation, to his mind, clearly indicated that a means of escape in case of fire was essentially something different from, and additional to, the normal means of egress provided by the ordinary door and doorway. Again, I am afraid, I cannot agree with that interpretation. Had he said that such a means of escape "may be" something different from the normal means of egress I would not have quarrelled with it. Clearly reg. 33 is concerned with a case where the Commissioner is not satisfied that the ordinary doors and doorways and other means of egress are sufficient in case of fire and it is necessary to provide something additional. There may be cases where the ordinary means of ingress and egress are sufficient even in case of fire proviede they are kept free, in which case the Commissioner will not serve a notice. 7. The full extent of the meaning of "means of escape" it is not necessary for me to decide in this case. It may well be that the means of escape must be complete in itself, and I do not need to consider the case, which was mentioned in argument, of a window which had been barred. The window of itself would not be a means of escape unless a fire-ladder were brought up to it, and it may be that to put bars on such a window would not be an offence against this regulation. That must be ...(illegible) if and when the need arises, but here we had a complete means of escape which was blacked. 8. Thirdly the learned magistrate referred to the earlier provisions of the regulations which dealt with the provision of fire-resisting doors. He concluded that in regs. 26, 27 and 28 the Legislature had exhausted its requirements and stipulations as to doors and, as I understand him, he thought that the obstruction in this case was obstruction to a door and that there was nothing in the regulations in relation to doors which the Defendants had done wrong. Again, with respect to him, I think this was to confuse a means of escape with a door. A door is never a "means of escape": it may represent a part of a means of escape - or more likely, an obstruction to a means of escape, the doorway being part of the means of escape. In my view the Legislature in reg. 31 did not refer to doors because it did not mean doors: it was concerned with means of escape. 9. For these reasons I allow this appeal. I answer the question put to me thus, that the door and doorway constituting the exit to Flat 2B are part of a "means of escape in case of fire" within the meaning of reg. 31(1) of the Factories and Industrial Undertaking Regulations. ************************* 10. Having asked counsel for the Appellant what form my order should take, I am now informed that the Case was not entirely accurate when it stated that the Information "was heard and determined", while the passive role of the Respondents upon the hearing of this appeal has been explained. It seems that the Respondents sought to plead Guilty to the Information but that the learned magistrate declined to accept that plea. That, of course, was very proper in the light of his view of the law, but he ought then to have entered a plea of Not guilty and heard evidence before dismissing the Information. This, I am told, he did not do, although I do not have the record and would prefer to assume that the correct procedure was followed. I shall remit the case to the learned magistrate with the opinion already expressed and direct that the trial of the Information be now duly completed. If there is a plea of Not guilty entered upon the record and evidence has not been heard then, unless a change of plea is entered, the prosecution must prove its case. Whatever procedure is now appropriate, if the proceedings end in a conviction the learned magistrate will no doubt, when passing sentence, bear in mind that the Defendants sought to plead Guilty from the start and have been put to the inconvenience of an appearance before this Court and a further appearance in the Magistrates' Court. 28th June 1974. Representation: |
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