The Queen v. Helena Restaurant (1981) Ltd

Case No.HCMA 501/1985

Court

High Court CFI

Date01 Oct 1985

Judge—

Case Document

100%Judiciary

HCMA000501/1985

Mag. Appeal No. 501/85

HEADNOTE

Case stated

Dangerous Goods (General) Regulations, Cap. 295

Reg 66(1)	Using cylinders to contain LPG which cylinders had not been tested and examined within the preceding 5 years.
Question (1)	Was the Magistrate correct in law in interpreting this regulation as applying not to the consumer/ purchaser but only to dealers and those actually responsible for the pouring in, filling or putting in of LPG into cylinders.
Question (2)	What mental element is required to be proved by the Crown to make out an offence contrary to Reg 66(1) by the Respondent.
Held	The answer to Question (1) is "No." The Magistrate was incorrect in holding there was no case to answer on this first point.
	Since the Magistrate did not decide on the second point, it was not strictly necessary for this Court to give an answer to Question (2) in this form.
	However it is the view of the Court that the offence created is one of strict liability.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 501 OF 1985

________

BETWEEN

THE QUEEN

Respondent

AND

HELENA RESTAURANT (1981) LTD.

Appellant

________

Coram: Hon. Hooper, J. in Court

Date of hearing: 10 September 1985

Date of delivery of judgment: 1 October 1985

___________

JUDGMENT

___________

1. This is an appeal by way of case stated from a decision of the Magistrate at Tsuen Wan whereby he dismissed an information against the above-mentioned Respondent which had been preferred on behalf of the Director of Fire Services against the Respondent under Regulation 66(1) of the Dangerous Goods (General) Regulations, Cap. 295, Laws of Hong Kong.

The information charged the Respondent that:

"On the 20th day of June 1984, at its premises at 109-115, Wu Tong Tsui Street, Kwai Chung, New Territories, did use 7 cylinders to contain liquefied petroleum gas which cylinders had not been tested and examined within the preceding 5 years."

2. Regulation 66(1) provides as follows:

"No person shall use any cylinder, or cause or permit any cylinder to be used, to contain any permanent or liquefied gas unless such cylinder has been tested and examined within the preceding 5 years by a person approved by the authority for that purpose."

3. Upon the hearing of the information, the following facts were admitted by the Respondent under S. 65(c) of the Criminal Procedure Ordinance, Cap. 221:

"	(a)	Following a change of name the defendant company became Helena Restaurant (1981) Limited by a certificate of incorporation dated 23rd June 1981.
	(b)	At about 7.03 a.m. on 20th June 1984 five officers arrived at the defendant company's premises at 109-115, Wu Tong Tsui Street, Kwai Chung in response to a No. 1 alarm fire report.
	(c)	At approximately 8.12 a.m. the same morning, 20th June 1984, Senior Station Officer YU Chung-wai attended the scene and examined the premises and seized a total of eight 2.5 kg cylinders from the restaurant premises. Two were seized from under a working table in the kitchen on the second floor; four from under a working table in the first floor kitchen; and two were connected to food warming trolleys on the ground floor. The cylinders were labelled A-H and sent for analysis.
	(d)	Subsequent analysis by the Government Chemist showed that four of the cylinders contained liquefied petroleum gas (L.P.G.) which is classified under Category 2, Class 2 of the Dangerous Goods (classification) Regulations. The four remaining cylinders were found to contain traces of L.P.G.
	(e)	Of the eight cylinders seized seven were found to have been manufactured more than 5 years prior to the incident. The dates of manufacture were punch-marked on the foot ring of each cylinder and were as follows; A : June 1976, B : June 1977, D : June 1976, E : June 1977, F : June 1978, G : October 1978 and H : October 1978.
	(f)	The cylinder marked C was manufactured in October 1980 and therefore not as yet due for a test.
	(g)	The seven cylinders subject of the charge had not been tested and examined within the preceding 5 years in accordance with the requirements of Regulation 66(1) of the Dangerous Goods (General) Regulations.
	(h)	It is further agreed that the liquefied petroleum gas in the cylinders was supplied to the Helena Restaurant by Ko Wai Hong, a purported liquefied petroleum gas dealer."

4. As the Magistrate dismissed the summons on the basis that there was no case to answer, it was appropriate that he should set out the evidence which he had before him. This he did in paragraphs 5 and 6 in the following terms:

5. PW1, C/M YU Chung-wai, a Senior Station Officer of the New Territories Fire Protection Bureau was called to give evidence. He stated that at about 0812 hours on the 20th of June, 1984 he attended the Respondent's premises following the report of a fire at that location. On arrival he searched the premises and as a result seized eight 2.5 kg liquefied petroleum gas cylinders. He marked them A to H respectively and produced them as exhibits P2A - 2H. Of the eight cylinders he found seven of the eight cylinders had not been examined within the requirements of Regulation 66(1) of the Dangerous Goods (General) Regulations, Cap. 295. He further testified that on the 28th of June 1984 he sent the eight cylinders to the Government Laboratory for a testing. He produced the Government Chemist's certificate which was marked as exhibit P3. The said certificate indicated that five of the cylinders contained liquefied petroleum gas and the other three, namely cylinders P2A, P2D, P2F and P2H contained traces of liquefied petroleum gas. PW1 stated that if the cylinders had gone for hydraulic testing as required by Regulation 66 they should be stamped to the effect accordingly. The seven cylinders about which he gave evidence were not stamped to the required effect and in his opinion, this indicated they had not been tested. PWl agreed that the Respondent was not storing an aggregate amount of liquefied petroleum gas in the premises sufficient to bring it within any requirement for a storage licence within the regulations.

6. The next witness to give evidence was C/M CHAN Fu, PW2, a Pressure Equipment Officer of the Labour Department situated at Government Offices, Canton Road. He gave evidence to the effect that in his opinion the required testing under Regulation 66(1) had not been carried out on the cylinders as no date within the preceding five years was stamped on them."

5. The Magistrate set out the Respondent's submissions in paragraph 7 as follows:

"	(a)	The specific Regulation 66(1) was applicable to "dealers" only. In other words it only applied to corporations or individuals involved in the actual filling and distributing for sale or hire, cylinders containing permanent or liquefied gas. As such, it did not apply to consumers and as the Respondent was a consumer, the Regulation was not applicable.
	(b)	The Respondent stated that if the Court was of the opinion that the Regulation did apply to consumers, then an element of mens rea was required."

6. The Magistrate set out the submissions of the Crown in paragraph 8 as follows:

"8. The Crown's case was that the wording of Regulation 66(1) applied to any person using any cylinder for the purpose referred to in the regulation. As such, the regulation applied to users, consumers and any person using any cylinder to contain any permanent or liquefied gas. In effect, the Crown submitted that the purpose of the Regulation was to protect and ensure the safety of the public and as such the regulation created an offence of strict liability. As a result it applies universally to any person using the cylinder for the purpose contemplated by the Regulation."

7. The Magistrate set out the grounds for his decision in paragraph 9 as follows:

"	(a)	I agreed with the Respondent's argument that the Regulation applied to dealers and not to consumers as I interpreted the Regulation to read "no person shall use any cylinder to pour in or to fill in or to put in liquefied gas";
	(b)	The Regulation could not apply to consumers as in my view it would be ridiculous to expect ordinary members of the public, many of them Chinese of limited education and with no knowledge or little knowledge of English to recognise the complex set of markings usually used on the cylinders to identify when they were last tested;
	(c)	I interpreted the whole section of the Regulation containing Regulation 66(1) to apply to other than the consumer/purchaser as no ordinary member of the public could be expected to understand the highly technical provisions of the section as a whole;
	(d)	As I found that Regulation 66(1) did not apply to the consumer/purchaser I did not find it necessary to answer the Respondent's second argument, namely that the offence is not one of strict liability;
	(e)	In my view if Regulation 66(f) were to apply to the consumer/purchaser, then all the sections covered in the sub-heading "storage of cylinders" will have to apply to him equally, which cannot obviously be so."

8. The questions of law which this Court was required to answer are set out in paragraph 10 as follows:

"	(a)	Was I correct in law in interpreting Regulation 66(1) of the Dangerous Goods (General) Regulation, Cap. 295 as applying not to the consumer/ purchaser but only to dealers and those actually responsible for the pouring in, filling or putting in of liquefied gas into cylinders?
	(b)	What mental element is required to be proved by the Crown to make out an offence contrary to Regulation 66(1) by the Respondent?"

9. It is contended before me on behalf of the Respondent that the whole of these regulations in Part III of the Dangerous Goods (General) Regulations dealing with the storage of gases in cylinders are aimed at dealers and manufacturers who should be licensed and not at consumers of which there is no special mention.

10. It is also argued that the words "use ... to contain" in Regulation 66(1) should be construed as referring to the act of filling the cylinder and not to the use of the cylinder for any other purpose. Counsel for the Respondent submits that it should be confined to a person in the position of a dealer within the trade and should bind the manufacturer (that is, the person who fills the cylinder) as well as the dealer until the time he delivers the cylinder to the consumer.

11. Counsel for the Respondent argues that the words must be considered in their context in the Ordinance and Regulations which provide a regime or scheme of control involving licensed persons and premises and that the regime does not involve the ordinary consumer. Reference in this connection is made to the enabling section in the Ordinance, that is, section 5(1)(d) which gives the Governor in Council power to provide for "the control of and safety precautions which shall be taken in relation to the manufacture, possession, landing, shipment, trans-shipment, storage, movement, sale and use of dangerous goods."

12. It is argued on behalf of the Respondent that apart from the word "use" fall the other matters are the subject of particular specific regulations; that the enabling making power could give the Governor in Council power to make specific regulations binding on the consumer but that this hasn't been done.

13. Counsel for the Respondent also argues that section 6 of the Ordinance provides for the licensing of certain activities including the use of dangerous goods, but that no one has suggested that there is a licensing requirement in respect of simple user. The restaurant did not have to be licensed and he argues this is another indication that "use" appertains to a narrower field.

14. He suggests that the very wide powers of entry and search in section 12 of the Ordinance adds nothing except that the Director of Fire Services has power to enter premises where dangerous goods are inter alia, used and that it is open to argument whether that embraces a consumer person. It is added, he suggests, ex abundanti cautela to make it clear to licensees what powers the Director of Fire Services has. He suggests that the scheme of control is exemplified by section 13 which places a duty on occupiers of licensed premises to report on an accident to the Director of Fire Services.

15. He also refers to section 14(3)(b) of the Ordinance which gives the authority power to find the filler of the container and argues that the authority should have no difficulty in reaching back to the dealer or, in his words, the true culprit.

16. He then turns to Part III of the regulations dealing with the storage of liquefied gases and seeks to persuade me that no where in those regulations is there a provision which covers the consumer.

17. Although he concedes that the Court is necessarily concerned with public safety and enforcement of the law, he nevertheless argues that to confine the words "use to contain" in the narrower sense to the acts or omissions of licensees or dealers or persons who fill cylinders and store the cylinders would make a surer and better enforcement of the law.

18. He then presents an argument based on the premise that if a consumer is deemed to be using the cylinder to contain gas on a particular day then the supplier or dealer is not liable for that offence. He argues in effect that this is not in the best interest of the public and that the easiest and fairest route is to trace back to the supplier and prosecute him.

19. Finally he argues that if the regulation is ambiguous, there is a presumption against the imposition of a penalty. A consumer should only be caught when it has been made plain that somebody in such a remote position is liable.

20. I agree with Counsel for the Crown that the answer to the first question must be "no".

21. This is a regulation which must be construed in accordance with section 19 of the Interpretation and General Clauses Ordinance, Cap. 1 of the Laws of Hong Kong.

22. It provides:-

"An ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the object of the ordinance according to its true intent, meaning and spirit."

23. In my view the true intent, meaning and spirit of this legislation runs contrary to the Respondent's submission.

24. There is nothing in Regulation 66(1) itself which limits the application of its provisions to manufacturers or dealers.

25. While section 6 of the Ordinance imposes a blanket restriction on the manufacturing, storing, conveying or using of any dangerous goods without a licence subject to limited exceptions which do not affect this case, the Governor in Council is given powers to exempt any substance or article to which this Ordinance applies or any quantity thereof from the operation of the Ordinance or any part of it.

26. This he has done in Regulation 74 which provides:-

"	Section 6 of the Ordinance shall not apply to the storage or conveyance of any gas specified in the first column of the table in this Regulation in any quantity not exceeding that, if any, specified for such gas in the second column of the table:
	Provided that this paragraph shall not apply where the aggregate of the quantities of all such gases stored in the same store exceeds 5 cylinders of 25L of gases where one cylinder is deemed to be equivalent to 5L."

27. It is conceded by both counsel that because of this Regulation there was no licensing requirement on the Respondent.

28. The legislation thus clearly provides for the legitimate storage or conveyance of small quantities of gas without the necessity for a licence.

29. There is no logical reason why those persons exempted from the licensing requirements and all they entail should nevertheless not be subject to regulations relating to public safety. The term "no person" should be all inclusive and is particularly important when a person is not under the supervision provided by licensing requirements.

30. In my view it is wrong to say that there are no specific regulations dealing with "use" as opposed to "storage".

31. Regulation 66(1) which prohibits the use of a cylinder to contain liquefied gases subject to exceptions etc. appears in that part of Part III of the Regulations which concerns storage of gases in cylinders.

32. It is the storing of cylinders used to contain gases which is being prohibited, subject to the exception.

33. This is made abundantly clear in Regulation 180 which provides

"No person, who is accused of an offence under these regulations relating to the conveyance, storage or packing of dangerous goods ....."

34. Pausing here, the Respondent is a person accused of an offence under these regulations relating to storage.

"... shall be convicted thereof if he shows, to the satisfaction of the Court, that he was conveying, storing or packing such dangerous goods for his reasonable personal use and that the quantity thereof was sufficient only for such use, or that he was transporting such goods for delivery to some other person for such use and in such quantity."

35. This Regulation is aimed at the consumer and provides a defence for him.

36. I therefore hold the Magistrate was wrong to hold that this Regulation only applies to dealers and not consumers. The first question must be answered "no".

37. The Magistrate has said that he did not find it necessary to rule on the Respondent's second argument, namely that the offence is not one of strict liability and, strictly speaking, it is not necessary for me to answer the second question.

38. However, I feel that I should express a view on the matter, since it has been argued before me and it may be of assistance to the Magistrate.

39. These being regulations which are concerned with public safety, they fall within the sort of legislation Lord Scarman had in mind when he said in Gammon (Hong Kong) Ltd. and others v. Attorney General of Hong Kong [1984] 2 All E.R. 503 at p 508:-

"	(1)	There is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence;
	(2)	that 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; 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."

40. It is my view that the presumption is clearly displaced by the legislation with which I am dealing.

41. Regulation 179 provides:-

"No warehouse owner or carrier, acting in such capacity, who is accused of an offence under these regulations relating to the contents of any container or the inner packing of any dangerous goods or the labelling of any such inner packing shall be convicted thereof if he shows, to the satisfaction of the Court, that he did not know the true nature of the contents of the container or the manner in or the extent to which the container was filled or the true nature of or the labelling of the inner packing of such goods, as the case may be, and that he could not, with reasonable diligence, have obtained such knowledge."

42. This indicates that mens rea is not an essential ingredient but provides a defence in the case of those persons who could not know what is in the container. Such a defence would not be available for consumers who must be taken to know what they are using.

43. However, the rigours of the law are tempered by Regulation 180 referred to above, which protects consumers and persons delivering such goods to consumers for reasonable personal use.

44. This legislation is concerned with an issue of social concern, that is, public safety, and 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.

45. The answer to the second question is that the offence created is one of strict liability.

46. The Magistrate's finding that there was no case to answer is set aside and this case is remitted to him for him to proceed with the case.

47. Before leaving this matter I should add that reliance was placed by Counsel for the Respondent on the case of United Dairies (London) Ltd. v. Beckenham Corporation [1963] 1 Q.B. 434. However, I did not find this case helpful because the words "used for containing" in that legislation were construed in conjunction with other words and other regulations which were quite different and there was good reason to limit liability in that case to the farmer/producer of the Milk Co. who filled the containers.

	(N.B. Hooper)
	Judge of the High Court

Representation:

Mr. I.G. Cross (Sr. Asst. Crown Prosecutor) for Attorney General/Appellant

Mr. Anthony J. Corrigan, Q.C. assisted by Mr. Peter V.T. Nguyen (Oscar Lai & Ho) for the Respondent