Attorney General v. Gammon Hong Kong Ltd and Others
Read the full judgment text of CACC 1033/1982 on BabelCite. This Court of Appeal judgment.
1. The judgment I am about to read is the judgment of the court.
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CACC001033/1982 Criminal law - Buildings Ordinance - divergence from approved plans and carrying out works likely to cause risk of injury or damage - mens rea - both offences offences of strict liability - "permitting" - there can be no permitting unless defendant has power to control whether actus reus shall be committed or not - permitting does not import mens rea. Dates of hearing: 11th, 12th, 13th January, 1983 and 11th February, 1983. Lucas, Q.C., Oderberg and Fitzpatrick for Appellant. J. Mathew, Q.C. and Y.C. Mak (Denton, Hall & Burgin) for Respondents.
BETWEEN
----------- Coram: Sir Alan Huggins, V.-P., Yang & Barker, JJ.A. Dates of hearing: 11th, 12th, 13th January, 1983 and 11th February, 1983. Date of Judgment: 11th February 1983 ___________ JUDGMENT ___________ Sir Alan Huggins, V.-P. : 1. The judgment I am about to read is the judgment of the court. 2. The Respondents were respectively the registered contractor, the project manager and the site agent for building works on a site in the central district. The 2nd and 3rd Respondents were employed by the 1st Respondent. All were prosecuted in the magistrates' court and were acquitted. The Crown appeals by way of Case Stated. 3. The Case indicates the charges against the contractor in the following terms:
The charge against the project manager is said to have been one
That against the site agent is said to have been one
4. It is far from clear what the facts found were and, as we understand it, counsel were not agreed as to what really did happen. The Case reveals that plans for a lateral support system were approved. Whether all of any of the work necessary to produce a system indicated by those plans was carried out does not appear. Some "additional works" to the system were carried out and then there was a "removal of part of the lateral support system". Whether that removal was confined to the additional works or confined to the approved works or included part or both is not stated. It is said that as a result of the removal a portion of the site "would have become unsafe in engineering terms with a water table at +4 P.D.". This suggests that at that time the water table had not reached +4 P.D. and that the site was not unsafe. Whether the water table later reached that level, or was likely to do so, we are not told, nor do we understand what is the difference between "unsafe" and "unsafe in engineering terms". For the purposes of this appeal we assume that the finding was that building works were carried out in such a manner as was likely to cause a risk of injury to a person or damage to property. 5. Paragraph (4)(11) of the Case then states a finding in these terms:
The only work referred to in "paragraph 8" - which we assume was intended to mean paragraph (4)(8) - was the removal work, which we take to be something different from "those works" in respect of which plans had been approved by the Building Authority, not only because of the change in the number of the noun but also because the only plans previously mentioned as having been so approved were plans of the lateral support system. The removal work could, therefore, not "constitute" a deviation (whether of substance or otherwise) from the plans approved, but might have resulted in such a deviation. We assume that that is what was meant. It would be a finding which, we understand, the Respondents would seek to challenge if the present appeal succeeds. 6. The issue which arises for our decision is whether any and, if so, what intention in each Respondent had to be proved by the prosecution in relation to the offences charged. 7. Although we have been referred to many cases, we think that the principles which we should apply are sufficiently stated in Sweet v Parsley 1970 A.C. 132. Lord Pearce said at p. 156E:
To that should be added the words of Lord Diplock at p. 163F:
8. Although the absence of the word "knowingly" is never of itself enough justification for dispensing with the ncesssity for mens rea, Mr. Lucas nevertheless relied upon the absence of the word from paragraph (b) of as. (2A) - not as, of itself, showing that it was unnecessary to prove that the Respondents knew there had been. a material deviation but as distinguishing that paragraph from paragraph (c) where the presence of the word clearly excludes an innocent misrepresentation. Mr. Mathew contends that the absence of the word "knowingly" would not in any case have had the effect of excluding the element of knowledge altogether but only of transferring the burden of proof. He relied on Sherras v De Rutzen 1895 1 Q.B. 918, where Mr. Justice Day said at p. 921:
We are not sure that we could accept this last argument, because there is a difference between a case where knowledge is not included as an element of an offence and a case where absence of knowledge is made a defence, so that the absence of the word "knowingly" from a provision creating an offence, if it has any effect at all, would seem to point towards an offence of the former kind. Therefore we would hold that the absence of the word from ss. (b) is a factor (albeit a minor one) tending to indicate that knowledge is irrelevant. Moreover, in respect of offences created by other parts of s.40 the Legislature has been at pains to provide a defence which could only be appropriate if those offences at least were ones of strict liability. Thus under as. (2AA) it is a defence if the person charged proves to the satisfaction of the court that he did not know, or could not reasonably have discovered, a contravention referred to in the charge, whilst as. (7A) provides a joint owner of land, or a person who under the terms of a Crown lease is under an obligation to maintain land or a structure, with a defence where he is charged with failing to comply with an order made under the Ordinance and it can be shown that he was not personally served. 9. We were taken through the history of the Buildings Ordinance and it was pointed out that the provision which is now s. 40(2B) formerly made "the opinion of the Building Authority" the test of likelihood of risk. Mr. Lucas submits that it was improbable that the Legislature intended to substitute the opinion of the Defendant - which would be the effect of the construction contended for by the Respondents - and that the intention was clearly to substitute an objective test which would leave the matter for decision by the court. 10. Another factor in interpreting the legislation is the degree of punishment for the crimes created by the relevant sub-sections. Although the maximum sentence which may be imposed upon conviction is now in each case a fine of $250,000 and imprisonment for three years, that represents a big increase since the date when the crimes were first created. Therefore, Mr. Lucas argues, one should not attach any weight to the present maximum, for the increase merely shows the Legislature's view of the seriousness of a previously existing crime and of the need to deter persons from committing such infringements. It would be no answer to that argument to suggest that the Legislature would be unlikely to permit long terms of imprisonment for an existing crime which it thought did not require mens rea: the material time for ascertaining the legislative intention is the date of the creation of the crime and no subsequent misunderstanding as to the elements of the crime could alter its nature. 11. For our part we find any discussion of "social obloquy" unhelpful. The social conscience is notoriously elastic, ill-informed and pendulous. It can, in any event, be defined only by reference to the judge's own conscience and we see no injustice in the imposition of heavy penalties. for crimes such as those with which we are concerned, whether resulting from intentional infringement of the law, negligence or incompetence. Any large scale building operation will almost inevitably produce circumstances in which a departure from the generally accepted standards (whether of work or materials) will be likely to cause danger. Indeed, the extent of the danger and of the damage which may be done will frequently be enormous. It therefore behoves the incompetent to stay away and the competent to conduct themselves with proper care. A building contractor who delegates his legal responsibilities to an agent can fairly be held liable if he appoints an agent who is incompetent or careless: he should regulate his business in such a way as to avoid, on the one hand, the appointment of incompetent agents and, on the other, the consequences of any carelessness by a competent agent. Only if he is made responsible for seeing that the statutory standards are maintained can the purpose of the legislation be attained and in such a case as this the presumption of strict liability displaces the ordinary presumption of mens rea: see Lim Chin-aik v Rte. 1963 A.C. 160, 174. 12. Our attention was drawn to two cases decided under the Buildings Ordinance. In Attorney General v Chan Wing-on 1964 H.K.L.R. 491 Mr. Justice Macfee allowed an appeal by an architect against his convictions on a charge of using defective materials and a charge of aiding and abetting a material divergence from work authorised by a permit issued under the Ordinance. As we read the judgment, Mr. Justice Macfee held in relation to the charge of using defective materials:
In relation to the charge of aiding and abetting a building contractor in causing a material divergence from approved work he held:
In Chung Yat v Reg. 1978 H.K.L.R. 355 the 4th appellant was a limited liability company which undertook building works, the 1st appellant and 3rd appellant were directors of that company and the 2nd appellant was employed by the company as a site foreman. Serious flaws were discovered in the upper floors of a building erected by the company. The 1st and 2nd appellants had supervised the construction after the foundation stage. The 3rd appellant did nothing after completion of the foundation stage other than to sign some documents, which included a completion certificate. A large number of charges had been laid against the appellants in respect of the use of defective materials and deviation from approved plans. In the course of his judgment Leonard, J. (as he then was) said:
Having assumed that guilty knowledge was an essential ingredient he went on to hold that, where a limited liability company was charged, it was necessary to fix "the 'brains' of the limited company" with knowledge of the defects, deviations or divergences. (The quotation was a reference to the simile which lord Denning, M.R. expressed in Bolton (Engineering) Co. Ltd. v T.J. Graham & Sons Ltd. 1957 1 Q.B. 159, 172). 13. It was submitted that these cases supported the Respondents' contentions that the offences charged in the present case were not offences of strict liability and that the company was not criminally responsible for the acts of the project manager and site agent - because, it was contended, they were not the brains of the company - whilst the project manager and the site agent were not themselves criminally liable because they did not know the manner in which the works were carried out was likely to cause risk of injury. It is further argued that, the statute having been substantially amended since these cases were decided, without any attempt to make it clear that strict liability was intended, this was an indication that the Legislature had intended that the offences be not offences of strict liability. 14. For the reason already given in relation to the punishment argument we attach little weight to the last argument. What weigh more with us are the particular mischief sought to be prevented and the field of activity in which it occurs. Mr. Lucas submits that the object of the legislation can be achieved only if the work is undertaken on the site by competent persons acting competently and that, if a contractor is able to escape criminal liability by engaging unskilled employees, with limited authority, to do their incompetent best, that object would be defeated. He sought to draw a distinction between "absolute offences", of which a defendant can be convicted "although he takes no part in the actus reus", and "offences of strict liability", where the defendant does the actus reus without mens rea. This, he says, was a case of strict liability, and the company is liable because its employees are liable. He gave as a comparable example of strict liability Cornish v Ferry Misters Ltd. 1975 R.T.R. 292, where a drum which had been stacked on a lorry fell off owing to an unexplained latent defect in a pallet on which it stood. The relevant regulation required the load to "be so secured ... that danger is not likely to be caused". On an appeal against acquittal it was held that knowledge of the likelihood of danger was irrelevant: if the defect was such that danger existed as a matter of objective fact, both the driver and his employer, each of whom was a "user" of the vehicle, were liable. Lord Widgery, O.J. described the offence as "an absolute offence" and we confess that we think that phrase to be synonymous with "an offence of strict liability". 15. As we see it, there are two issues in cases of this kind. The first is whether the person who physically does the act is liable regardless of his knowledge of the danger. The second is whether that person's employer is vicariously liable for the act of the employee. The answer to the second question is dependent upon the first to this extent, that if the offence is one of strict liability then the employer is always liable, because the employee is his agent, whereas, if an offence is not one of strict liability, the employer has mens pea only if the employee is of such a status that he is the alter ego of the employer. 16. Whether an offence is one of strict liability may depend upon the further question whether the statute lays down a prohibition or imposes a duty to perform some act: see Harding v Price 1948 1 K.B. 695. In the present case there are implied prohibitions and the distinction is irrelevant. On the other hand there is importance in the distinction drawn in Lim Chin-aik v Reg. (supra) between cases where there is a prohibiton and where punishment of breaches of prohibiton would tend to ensure compliance and cases where to treat the prohibiton as absolute would not ensure compliance. Thus it was held that a breach of an order prohibiting entry into Singapore was punishable only if the person concerned was aware of the order. Lord Evershed, delivering the opinion of the Board, said at p. 174:
Mr. Mathew has argued that the present case is in .a different class from those in which strict liability has been enforced, because the Buildings Ordinance requires supervision by various highly qualified professional persons, so that to make the Respondents responsible for doing something which they did not know was likely to cause danger would be unjust and not in any way affect the observance of the law. He suggests, moreover, that the tide of opinion is flowing against the recognition of absolute offences (Reg. v She sheppard 1981 A.C. 394) and that the small number of Prosecutions brought under the Buildings Ordinance is an indication that strict liability is unnecessary to obtain compliance with the law. 17. We accept that "it is not enough to say that public interest is engaged" (Reg. v City of Sault Ste Marie (1978) 85 D.L.R. 161, 171) but, looking at all the material factors, we are persuaded that once it is established that a defendant has in fact diverged from work shown in plans or has carried out work, or permitted work to be carried out, in a manner which in fact is likely to cause risk of injury it is not necessary to prove that the defendant was consciously aware of the divergence or of the risk of injury. It follows that on the findings assumed the 1st and 2nd Respondents were guilty of the offences charged. 18. A further matter has been argued in respect of the 3rd Respondent and is said to be relevant because he was in a subordinate position and because he was charged with "permitting" the works to be carried out in a manner likely to cause risk of injury. Whereas the 2nd Respondent's function was in general terms "to co-ordinate works on the site", that of the 3rd Respondent was "co-ordinate the execution of the said works". We understand that to mean that the 2nd Respondent had authority to decide how the work should be done but that the 3rd Respondent had no such authority, he being concerned merely with the timing of the various operations controlled by the 2nd Respondent. It does not appear from the Case Stated that it was the timing of the works which caused the risk of injury but rather that it was the nature of the work, which was not under the control of the 3rd Respondent. Accordingly it is submitted that he could not be guilty of the offence charged. Whether or not an offence requires proof of mens rea, it seems to us that a defendant can never be guilty of permitting something which he had no power to prevent. Thus, if the 3rd Defendant had no authority to decide that the works were to be carried out in a particular manne, he did not permit the work to be carried out in that manner even though, had he so permitted, it would have been no answer to the charge that he did not appreciate that risk of injury was likely to result therefrom. That seems to us to follow from the decision in James & Sons Ltd. v Smee 1955 1 Q.B. 78 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 of injury or knowledge that such likelihood would result but does require that the defendant shall have had a power to control whether the actus reus (the carrying out of the works in the manner which in fact causes a likelihood of risk of injury) shall be committed or not. Indeed, referring to an intention to permit the actus reus without knowledge of the likelihood of risk of injury as "mens rea" is only to invite misunderstanding. This further issue, however, is not one which was raised by the Case as it has been stated. 19. The questions put to us (as amended) are in these terms:
Our answers are:
11th February 1983. Representation: Lucas, Q.C., Oderberg and Fitzpatrick for Appellant. J. Mathew, Q.C. and Y.C. Mak (Denton, Hall & Burgin) for Respondents. |