The Attorney Genereal v. Ng Enterprises Ltd.

HCMA000967/1986

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HEADNOTE

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Ice cream containing coliform organisms - bacteriological examination not analysis - no need to serve certificate of analysis with summons.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Appeal No. 967 of 1986

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BETWEEN

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Coram: Hon. Bewley, J. in Court

Date of hearing: 3rd October, 1986

Date of delivery of judgment: 23rd October, 1986

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JUDGMENT

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1. On 28th January this year the respondent pleaded not guilty to a summons alleging the sale of ice cream containing coliform organisms in 0.1 of a millilitre, contrary to regulation 5 of the Frozen Confections (New Territories) Regulations, made under section 56 of the Public Health and Urban Services Ordinance, Cap. 132.

2. Section 66(1) of this Ordinance provides:

"In any proceedings under this Part in respect of an article or substance sampled, the summons shall not be made returnable less than 14 days from the day on which it is served, and a copy of any certificate of analysis obtained on behalf of the prosecutor shall be served with the summons."

3. At the hearing, but before evidence was led, the solicitor for the respondent successfully applied to the magistrate for the summons to be dismissed, on the grounds that no certificate of analysis was served together with the summons. A subsequent application by the Crown for a review of this decision was refused.

4. The Crown now applies to this court, by way of case stated, for a ruling whether a certificate of analysis is required to be served with a summons for this offence.

5. The short point is whether 'analysis' includes 'bacteriological examination'.

6. The magistrate was of the view that it did, on the grounds that section 63(1) refers to both terms, viz.:

7. Counsel for the appellant cited, in support of his contention that the two things are different, a passage in Bell and O'Keefe's Sale of Food and Drugs, 14th Ed., which reads:

"It is clear from the phrasing of s. 90 and s. 91(1), that there is dichotomy between 'analysis' and 'bacteriological or other examination' and the former does not include the latter. It is suggested that, for the purposes of the Act, the following milk tests, namely the phosphatase, the methylene blue, the resazurin, the plate count, the microscopic count and the coliform bacillus test, are not considered analysis but come within the exclusive category of 'bacteriological or other examination'."

8. The fact that the proviso to section 63(1) excludes samples taken for bacteriological examination means that no certificate of analysis is available in such a case. This is because section 64 provides that such certificates shall be issued only in the case of samples delivered under section 63.

9. The reason for a different approach is obvious. In the case of a bacteriological examination, the sample cannot be split, as the whole product must be kept at a constant temperature. Bacteria can grow and multiply at different rates in different temperatures. A splitting of samples could result in a variation of results, whereas the purpose of analysis is to establish the chemical composition in a product. The amount of any chemical in a product cannot vary, as the chemical is not active, or able to grow, in the same way as bacteria.

10. The answer to the question posed is in the negative. The case is remitted to the magistrate accordingly.

Representation:

Mr. Duguid, Senior Crown Counsel for Crown.

Mr. E. J. Draw and Mr. Y. Ho, Directors of NG Enterprises Ltd., for Respondent.