HKSAR v. Shun Tak Properties Ltd

HCMA 1014/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MAGISTRACY APPEAL NO. 1014 OF 2006

(ON APPEAL FROM ESS NO. 7775 OF 2006)

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BETWEEN

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Before:  Hon Stuart-Moore VP, Stock JA and Yeung JA in Court

Date of Hearing:  25 November 2008

Date of Judgment:  20 February 2009

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J U D G M E N T

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Hon Stuart-Moore VP and Yeung JA:

Introduction

1.Shun Tak Properties Ltd (“the appellant”) is the owner of Shun Tak Centre, a commercial cum office building, where the Hong Kong-Macau Ferry Piers are also situated.

2.The facades of Shun Tak Centre, of curtain-walls, require regular cleaning and to facilitate such cleaning, gondolas, suspended from the top of the building, are installed. Pollution and Protection Services Ltd (“PPS”) was the contractor responsible for cleaning the curtain-walls.

3.On 7 October 2005, when Chan Kit-piu and Law Kar-cheung (“the workers”), engaged by PPS, were on board one of the gondolas (“the gondola”), performing cleaning duty at the 38^th-39^th floor level, the eastern luffing jib of the gondola failed and dipped down, whilst the western jib remained normal and functioning, thus tilting the gondola to one end and causing injuries to the workers.

4.The accident led to a summons against the appellant under s 4(e) of the Factories and Industrial Undertakings (Suspended Working Platforms) Regulations (“the Regulations”), made under s 7 of the Factories and Industrial Undertakings Ordinance (“the Ordinance”), alleging that the appellant, being the owner, had failed to ensure that the gondola was not used for carrying persons unless it was properly maintained.

5.The appellant pleaded not guilty to the summons, but was convicted by Mr Joseph To (“the magistrate”), and fined $15,000. The appellant appealed against the conviction.

6.On 9 January 2007, Deputy High Court Judge Line, at the invitation of the parties and in exercising his power under s 118(1)(d) of the Magistrates Ordinance Cap 227, reserved the appeal to this court.

7.Mr PJ Dykes SC and Mr Toby Jenkyn-Jones act for the appellant. Mr J Reading SC and Mr Joseph Wong represent the respondent.

The Prosecution Case

8.The appellant admitted that Shun Tak Centre was an industrial undertaking, and that the gondola was a suspended working platform within the meaning of the Regulations. The appellant also accepted that it was the owner of the gondola.

9.The unchallenged prosecution case was that the gondola was between 18 and 20 years old. When examined after the accident, the internal threads of the gearbox of the eastern jib of the gondola were found to have excessive wear and tear, the two shafts were heavily greased with pasty dark brown and black grease, and the oil-drums were dry and empty. The lack of oil lubrication had caused excessive wear and tear. The prolonged use of the gondola resulted in the thinning of the screw threads of the eastern jib, which could no longer hold the weight of the gondola, resulting in its sudden collapse.

10.The prosecution expert, Ms Ng, made the following comments:

“1.      The gondola was not properly maintained because the internal threads of the eastern gear block had seriously torn off, which was unlikely to happen if the parts had been regularly and effectively maintained and replaced where necessary.

2.       From the safety point of view, it was essential to develop a preventive maintenance program in accordance to the manufacturer’s specification, listing out the details and frequency for repair and maintenance with a checklist so that no component requiring proper attention would be missed.

3.       The Manufacturer’s Operation and Maintenance Manual should be kept and provided to persons who repair and maintain the gondola because different gondolas have different design and construction. All moving parts should be inspected for wear and replaced as necessary. There should be a checklist and a schedule for periodical replacement. The maintenance staff should strictly follow the instructions, advice and guidance regarding maintenance as stated in the Manufacturer’s Operation and Maintenance Manual.”

The Defence Case

11.The appellant, having accepted that the accident was caused by the negligence of the maintenance contractor who had failed to examine the internal threads of the gearboxes and therefore did not discover the defects, contended that its duties under the Regulations were discharged by the engagement of competent professional registered engineers to maintain and repair the gondola in accordance with the statutory provisions.

12.The appellant pointed out that since January 2003, reputable maintenance contractors, BESO and then Score Success, had been engaged to maintain the gondola. The appellant also pointed out Score Success’s contractual obligations to carry out weekly, monthly and yearly examination in accordance with the requirements of the Ordinance and the Regulations.

13.The appellant emphasized that Score Success had to clean and grease the mechanism, examine all cables and wires, check and adjust the operation and functioning of the gondola, check the condition of the winch and gear, and provide emergency repair services.

14.The appellant produced the weekly, monthly and yearly examination reports of the gondola (Forms 1, 2 and 3) as required by the Ordinance and the Regulations for its operation.

15.The appellant also emphasized that it had adopted a system requiring (1) the reporting of any defects, (2) the joint inspection of the defects, (3) the preparation of repair reports, (4) the supply of quotations, (5) the carrying out of all necessary repairs, and (6) the checking of the repaired parts to ensure that the defects had been rectified.

16.The appellant claimed that, between 2003 and 2005, over $126,000 had been spent on the repairs of the gondola.

17.The appellant alleged that the manufacturer’s diagrams and technical data relating to the gondola were supplied to the maintenance contractors although the documents were not actually produced at trial. There was no record of the gearboxes of the gondola having been replaced despite the presence of a tiny slot in the gearing block to allow visual inspection of the internal thread without the need for taking apart the gearing block or taking the screw shaft off the block.

18.Nevertheless, the appellant contended that all reasonable and practicable steps had been taken to comply with the Ordinance and the Regulations, and nothing further could reasonably have been done. In the circumstances, the appellant argued that it should not be held liable.

The Magistrate’s Findings

19.Applying the test laid down in R v Fong Chin-yue [1995] 1 HKC 21, the magistrate concluded that the offence in question was one of strict liability.

20.The magistrate, pointing out the requirement of s 4(e) of the Regulations that “the owner shall ensure…it is properly maintained”, rejected the appellant’s suggestion that it could rely on s 18(1) of the Ordinance, which restricts its operation to offences involving (i) what was necessary, practicable, reasonably practicable, or (ii) reasonable steps, practicable steps, adequate steps, or reasonably practicable steps.

21.The magistrate then considered the applicability of “the common law due diligence defence”, enunciated by Bokhary JA (as he then was) in Fong Chin-yue (supra). Such a defence arose out of the following paragraph at p 33G-H of the judgment, namely:

“We are equally satisfied that it would do that objective absolutely no harm at all for it to be a defence if the accused proves on a balance of probabilities that he believed for good and sufficient reason that the provisions of the Dutiable Commodities Ordinance had been complied with… Indeed, we would go on to say that, quite plainly, the availability of such a defence would actually advance that objective. It would advance it by permitting it to be attained without convicting blameless persons.”

22.The magistrate took the view that, to establish “the common law due diligence defence”, the appellant had to prove that it had, for good and sufficient reason, held the belief that the gondola had been properly maintained.

23.The magistrate accepted that the gondola had been regularly checked and that the accident was the result of an instantaneous failure of the gearbox of the eastern jib.

24.However, the magistrate found that the two oil drums, attached to the gearing blocks, were dry with insufficient lubricant and that the maintenance contractor was aware of it as significant greasing had been applied, which had prevented a visual inspection of the internal threads by the slot on the gearbox.

25.The magistrate further found that the machine was old and needed to be dismantled from time to time so that the wearing parts could be checked, specifically with a view to finding out if they needed to be replaced.

26.The magistrate pointed out that the appellant had produced no record to show that, despite the prolonged use of the gondola, any of the wearing parts in the luffing jib had been replaced when there was an earlier warning by BESO of the need to check and replace some other wearing parts.

27.The magistrate concluded that “passive reliance on a maintenance contractor to make reports on defects as and when they were found came nowhere near discharging the statutory responsibility to ensure the gondola was in a proper state of maintenance”.

28.The magistrate therefore rejected the suggestion that the appellant had good and sufficient reason to believe that the gondola had been properly maintained, and on such a basis, convicted the appellant.

The Appeal Procedures

29.After filing its Notice of Appeal on 3 October 2006, the appellant submitted, on 8 December 2006, the perfected grounds of appeal against conviction settled by Mr Jenkyn-Jones.

30.The perfected grounds of appeal suggested that the magistrate was wrong to find that the appellant had not properly maintained the gondola or that the appellant did not hold the belief that the gondola was properly maintained.

31.It further suggested that the magistrate was wrong to have relied on documents produced by the appellant for a purpose different from the one intended by the appellant without first affording the appellant the chance to made representations.

32.On 20 December 2006, the appellant filed a Notice of Motion for the admission of fresh evidence.

33.A 15-page skeleton argument, again settled by Mr Jenkyn-Jones dated 8 January 2007, was filed shortly before the 9 January 2007.

34.Pursuant to Deputy Judge Line’s direction, the appeal was set down for hearing before the Court of Appeal on 31 August 2007.

35.Shortly before 31 August 2007, the appellant submitted a 36-page Amended Skeleton Argument (“the Amended Skeleton Argument”) settled by both Mr Dykes and Mr Jenkyn-Jones. The late filing of the Amended Skeleton Argument resulted in an order by Stuart-Moore VP to re-schedule the appeal. In due course, the appeal was fixed for hearing on 16 May 2008.

36.The Amended Skeleton Argument raised a number of grounds.

37.This suggested, for the first time, that the offence was not an offence of strict liability.

38.It was argued that the magistrate, in finding that the appellant had not properly maintained the gondola, had failed to appreciate the “impact and significance of the underlying regime of inspection and certification set out in the relevant Regulations and the Code of Practice thereto, and the Engineers Registration Ordinance”, but was misled by the prosecution witness with regard to the maintenance measures that the appellant had in fact taken, bearing in mind the degree of control or supervision that they could lawfully exert on the maintenance contractor.

39.It was further argued that the magistrate had wrongly accepted the recommendation by the prosecution expert of the need to dismantle the luffing jibs to find out if the wearing part needed to be replaced when the recommendation was unsupported or unjustified by evidence and when there was no evidence on the actual frequency of its use, and that in any event such need was negated by the contents of the Forms 1, 2 & 3.

40.It was suggested that the magistrate was wrong to find, in the absence of any expert evidence and by reference to photographs alone, that the maintenance contractor had used excessive grease to cover up a known defect, which excessive grease had also prevented a proper visual inspection of the internal shaft.

41.It was argued that the magistrate should have accepted DW2’s evidence to the effect that the accident was the result of an abnormality and not due to lack of proper maintenance.

42.In so far as the magistrate found that the appellant did not have good and sufficient reason to believe that the gondola had been properly maintained, it was submitted that the magistrate had applied the wrong test, had belittled the steps taken by the appellant, and had ignored the significance of the statutory regime with regard to the inspection, testing and certification of the gondola.

43.In particular, it was suggested that the magistrate was wrong to require the periodical dismantling of the machine to inspect the internal parts when there was no such professional or statutory requirement or manufacturer’s recommendation to do so.

44.The Amended Skeleton Argument also suggested that the magistrate was wrong to find that because the appellant was alerted to the need to conduct a major overhaul of a specific part of the gondola, there was a similar need to overhaul another part of the gondola in the absence of any expert’s evidence.

45.In aid of the appeal, the appellant sought leave under s 83V(1)(a) & (c) of the Criminal Procedure Ordinance to adduce fresh evidence, principally a statement of Mr Sin Wai Bun, the appellant’s senior property manager, and a technical report prepared by Mr Wilkin WK Lam of Elitt Engineering Consultants Ltd (“the technical report”).

46.The technical report attempted to refute some of the magistrate’s findings, particularly the one relating to the appellant’s failure to check and replace wearing parts of the luffing jibs when it had been alerted by BESO of the need to check and replace other wearing parts that had severely corroded.

47.The technical report, having made comments on the evidence, emphasized that the screw jacks of the two luffing jibs of the gondola were driven by one electric motor and were linked, and that the two screw jacks and their internal gear blocks should be synchronised so that the two luffing jibs could tilt up and down simultaneously.

48.The technical report, pointing out the evidence that the western jib was in a normal and functioning state, suggested that the severity of wear and tear of the eastern gear block was due to an abnormality, and not a lack of proper maintenance.

49.The technical report emphasizeed the strict statutory provisions requiring the periodical tests (Forms 1, 2 & 3) to be conducted by “competent examiners” before the gondola could be used and that prior to the accident, the gondola was certified to be in good working order.

50.The technical report attempted to comment on the findings of the magistrate and suggested that those findings were erroneous.

51.It was also contended on behalf of the appellant that the magistrate had made findings on issues not canvassed at trial, which it had not had a chance to deal with, and that therefore fresh evidence on those issues should be allowed in the interests of justice and fairness.

Observation on Some of the Points raised in the Amended Skeleton Argument

52.The application to adduce fresh evidence was very surprising.

53.A witness, expert or otherwise, should not comment on the findings of a magistrate, let alone suggest that those findings are erroneous.

54.If the manner in which the magistrate dealt with the case gives rise to justified complaints, the issues can be dealt with on appeal without the need for fresh evidence.

55.The technical report suggested that the gondola, bearing in mind the relevant statutory framework, was in fact properly maintained.

56.Whether the gondola was properly maintained was an important issue for the magistrate alone to decide. If Mr Lam’s evidence was relevant to this or any other issues, he should have been called so that his opinion could be tested. The appellant did not do so and only sought to introduce Mr Lam’s opinion as fresh evidence after the magistrate had adjudicated upon the matter.

57.Counsel for the appellant did not even offer an explanation for its failure to adduce the “fresh evidence” at the trial. The application to adduce fresh evidence was clearly misconceived.

58.It was equally surprising that counsel for the appellant should find it proper to argue that the gondola was in fact properly maintained.

59.Under s 3 of the Regulations, “maintain” means “maintain in safe working order and in good repair (renewal, alternation or addition”. The  “maintenance” of the gondola referred to its physical condition, and not to what the appellant did or failed to do. “‘Maintained’ is employed to denote the continuance of a state of working efficiency. In the ordinary use of language one cannot be said to maintain a piece of machinery in efficient working order over a given period if, on occasion within that period, the machinery, whatever the reason, is not in efficient working order.” (Per Walker LJ in Stark v Post Office [2000] ICR 1013 at p 1018D – E)

60.The statutory regime of certification and inspection, designed no doubt to achieve the legislative aim of industrial safety, is not a guarantee of proper maintenance. Otherwise, having made provisions for regular certification and inspection, there is no further need to make it an offence when the gondola is not properly maintained.

61.To put it bluntly, a gondola may be subject to regular inspection and certification in accordance with the Ordinance and the Regulations, yet still not be properly maintained as required. “Maintenance” describes a result to be achieved rather than the means of achieving it.

62.Indeed, the appellant never suggested, at trial, that the gondola was properly maintained. The excessive wear and tear of the internal threads of the gearbox of the eastern jib, caused by the lack of oil lubrication, was not disputed. It was accepted that the oil drums were dry and empty, and that the thinning of the screw threads could no longer hold the weight of the gondola, resulting in its sudden collapse.

63.The only defence at trial advanced by the appellant was that it had engaged competent professional registered engineers to maintain and repair the gondola in accordance with a vigorous statutory regime and therefore its statutory obligations had been discharged.

64.The Amended Skeleton Argument also sought to raise the issue of whether the offence in question was one of strict liability, an issue that had been well settled.

65.The leading authority on the issue is Gammon (HK) Ltd & Others v AG of Hong Kong [1985] AC 1, which concerns a statutory offence under the Buildings Ordinance of a deviation from approved plans and carrying out works in a manner likely to cause risk of injury or damage.

66.Lord Scarman, in delivering the judgment of the Privy Council, emphasized that in cases of social concern and public safety, strict liability would help to promote greater vigilance in order to prevent the occurrence of the prohibited act. Lord Scarman further emphasized that, where the subject matter of the statute is a regulation to ensure public safety, it can be and frequently has been inferred that the legislature intends that such activities should be carried out under conditions of strict liability.

67.Just like the Buildings Ordinance, the Ordinance and the Regulations cover a field of activities in a factory, mine or quarry, power station, dock, wharf, warehouse and any premises or site in which industrial undertaking involving the use of any machinery is carried out. It is a statute the subject matter of which may properly be described as:

“the regulation of a particular activity involving potential danger to public heath [and] safety…in which citizens have a choice as to whether they participate or not…” (Per Lord Diplock in Sweet v Parsley [1970]AC 132 at p 163)

68.S 4 of the Regulations explicitly obliges the owner “to ensure that a suspended working platform will not be used unless it is properly maintained.” (Emphasis added)

69.Neither the Ordinance nor the Regulations, unlike some of the other regulations made under the Ordinance, provides an excuse for, or escape from, the obligation with the use of “knowingly”, “lawful excuse”, “reasonable explanation”, “until the contrary is proved”, or the like. The obligation is not even restricted with the use of phrases such “as far as reasonably practicable”, “as may be necessary”. The Regulations provide no defence when a suspended working platform is not properly maintained as required.

70.The intention of the legislation, to protect the safety of members of the public who may be involved in factories and industrial undertakings, is clear and the object and purpose of the Ordinance can only be promoted by making the offence in question one of strict liability.

71.Such an approach has been consistently followed in Hong Kong.

72.In HKSAR v Paul Y-ITC Construction Ltd [1998] 3 HKC 189, the Court of Appeal firmly decided that offences, under the Noise Control Ordinance Cap 400 of causing the use of powered mechanical equipment without a permit and causing construction work to be carried out during restricted hours without a permit, are offences of strict liability when the legislature intends to protect issue of social concern.

73.The approach taken in HKSAR v Hip Hing Construction Co Ltd (unrep HCMA 376/2002) cited what had been said (at para 13) in HKSAR v Chun Wo Building Construction Ltd (unrep HCMA 749/1999, namely:

“…the Factories and Industrial Undertakings Ordinance was enacted to ensure that places of work, including factories and industrial undertakings, should be safe for the people working therein. The regulations made under the Ordinance apply to a number of places including construction sites and to a number of things. I said that the Ordinance was concerned with an issue of public safety and it could readily be said that the creation of strict liability for all offences created under the Ordinance would be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of prohibited acts.”

74.Other than pointing out the presumption that mens rea is an essential ingredient in every offence, the Amended Skeleton Argument has not pointed to any authority to support the suggestion that the offence in question was not one of strict liability. In our view, the point was without merit.

The Hearing on 16 May 2008

75.On 15 May 2008, the day before the re-scheduled hearing, the appellant filed a “Summary of Appellant’s Case in Light of Respondent’s Arguments” on Case (“the Summary”) settled by Mr Dykes and Mr Jenkyn-Jones.

76.In the Summary, perhaps not surprisingly, the appellant appeared to have abandoned all the other grounds of appeal and relied only on the “common law defence of honest and reasonable, albeit mistaken belief”.

77.At the hearing on 16 May 2008, Mr Dykes, when asked, informed the court that the appellant would indeed abandon three of the four grounds raised in the Amended Skeleton Argument, namely (1) that the offence in question was not an offence of strict liability; (2) that the gondola was properly maintained; and (3) that the statement of Mr Sin Wai Bun and the technical report of Mr Wilkin WK Lam should be admitted as fresh evidence.

78.Mr Dykes claimed to have no knowledge of the Amended Skeleton Argument although it bore his name. As a result of Mr Dykes’s submission, we found it necessary to ask Mr Dykes to reduce his oral submission into writing and to have Senior Counsel on behalf of the respondent to respond to his submission, thus necessitating a further adjournment of the appeal. We took the view that the case concerned a difficult and important issue and that Senior Counsel should be engaged so that issues raised by the applicant could be properly argued by the respondent.

79.In early June 2008, Mr Dykes submitted “A Note of Essential Argument on the Common Law Defence (HaramBic)” dated 2 June 2008, and Mr Reading SC, Senior Counsel engaged by the respondent, then submitted a short 4-page “Further Submissions”.

80.Mr Reading’s point simply was that the offence in question is one of absolute liability, and would be proved if it was established that the gondola was not properly maintained. Mr Reading did not find it necessary to refer to any case on regulations that employed similar wording as s 4(e) of the Regulations. Mr Reading’s submission was not entirely helpful.

81.We have set out the appeal procedures to demonstrate that much of the court’s time had been wasted because of the irresponsible way in which the appeal was conducted.

82.If the appellant had the courtesy to inform the court earlier that three out of the four grounds raised in the Amended Skeleton Argument would be abandoned, a considerable waste of time on our part and on the part of the respondent could have been avoided and there would have been no need for the adjournments.

The Remaining Ground of Appeal

83.Mr Dykes argues that the court should only reject the common law defence of honest and reasonable mistaken belief if satisfied that one or more of the usual policy considerations clearly mandates such a construction.

84.Mr Dykes points out that under the Regulations, an owner includes “the lessee or hirer, any overseer, foreman, or agent”, who can be put in charge of a suspended working platform for a short time and it would not be fair to them if improper maintenance of the suspended working platform would automatically lead to criminal liability when they have no say in the selection of independent contractors responsible for its proper maintenance, and could only rely on the statutory regime to satisfy themselves that the suspended working platform is properly maintained.

85.Mr Dykes emphasizes that the competent persons and/or examiners have the continuous personal obligation to inspect, test and examine the gondola whereas an “owner” cannot perform such duties personally and has to rely on those competent persons and/or examiners appointed by him. Therefore an “owner” must be able to rely on the competent contractors to discharge the relevant obligations under the Regulations.

86.Mr Dykes further points out the vigorous statutory scheme relating to the proper maintenance of the gondola in safe working order and good repair, and the statutory documentation required under such a scheme.

87.Mr Dykes submits that the appellant, as an “owner”, is not only entitled to rely on such documents, but also is bound to abide by them, and therefore should also be able to rely on those documents unless he has good reason to believe that they are not accurate.

88.Mr Dykes further submits that the there was no reason for the appellant to suspect that the certificates, generated by the statutory inspections and examinations, were not accurate and/or that the gondola had any defects that needed to be repaired. Mr Dykes submits that a “blameless” person should not be held liable for a offence, which carries a term of 12 months’ imprisonment.

89.Mr Dykes argues that it was unreasonable for the magistrate to have found that there should be a periodical dismantling of the gondola so as to locate the internal defects and in any event, as the appellant had never been informed of the need of such an extreme action, the appellant should not be held liable.

90.Mr Dykes submits that the common law defence of honest and reasonable albeit mistaken belief was available to the appellant and that such a defence had been established.

Discussion

91.In Hong Kong, the genesis of “the common law due diligence defence” is the case of Fong Chin-yue (supra), when Bokhary JA (as he then was), having ruled that an offence under s 17 of the Dutiable Commodities Ordinance was an offence of strict liability, indicated at the same time, as an obiter dictum, that it would be a defence if the accused proved on a balance of probabilities that he believed for good and sufficient reason that the provision of the Dutiable Commodities Ordinance had been complied with.

92.The approach was adopted in Paul Y-ITC Construction Ltd (supra) although such defence did not arise in the case itself as pointed out by Stuart-Moore JA (as he then was) at p 198:

“We come finally to consider the complaint which was made in ground 3. We can express, for the avoidance of any doubt, the view that it would be (as in Fong’s case) a defence for a defendant in the position of this appellant company to prove on a balance of probabilities that it believed for good and sufficient reason, though erroneously, that there had been compliance with the Ordinance. However, no such defence was even attempted in the present case. The evidence was all the other way. The appellant company elected not to call evidence. PW3 was its agent and had seen the offences being committed. It was wholly unnecessary for the magistrate to consider this aspect as a possible defence. It never arose and it could never have arisen on the present facts.”

93.Deputy Judge McMahon (as he then was) in HKSAR v China Civil Engineering Construction Corporation (unrep HCMA 1020/2001), and Jackson Jin HKSAR v Hip Hing Construction Co Ltd (unrep HCMA 167/2001) approved “the common law due diligence defence”.

94.However, in a more recent decision in HKSAR v Hyundai Engineering Construction Co Ltd (unrep HCMA 815/2002), a case of failing “to take adequate steps to prevent any person on the site from falling from a height of two metres or more”, Deputy Judge Line concluded that “the common law due diligence defence” is not available in safety regulations cases. He said at para 13 onwards of his judgment:

“It was argued that a defence was available to the appellants if they established on the balance of probability that they honestly believed for good and sufficient reason that they had complied with the regulation, albeit that they were mistaken in their belief. It was described as the common law defence.

I have no hesitation in rejecting the availability of such a defence. In my judgment it would turn on its head a whole body of jurisprudence concerning such safety legislation and it would do so for no good reason. Common sense and the policy behind the legislation deny it any place as a defence. It would make those who bear the burden of this safety legislation substantially judges in their own cause, notwithstanding the requirement of ‘good and sufficient’ cause. The prospect of different standards between different companies with different states of mind in this area of safety law which calls out for uniformity in the discharge of statutory duties is not sensibly to be contemplated.

It is worthy of note that when this defence was run in the magistrate’s court, it was run with no reference as to how the state of mind of a company like Hyundai Engineering Company Ltd should be ascertained. The conventional view is that a company will have imputed to it the acts and state of mind of its directors and managers who represent its ‘directing mind and will’. It seemed to be assumed at the trial that the relevant state of mind was that of the junior officer who had devised this unsafe system of work. What would the magistrate have done if faced with evidence of the state of mind in the boardroom? The directors of large responsible companies doubtless hold, and honestly hold, the belief in question. The investigation of whether such beliefs were held for good and sufficient reason opens up diverse facts and issues and the history of previous compliance or the lack of it. It may be argued that the courts must fashion a special rule for the attribution of the state of mind in cases such as this. If that is to be done then it has to be done by interpretation of the Regulations. It appears to me that no advocate of the availability of the defence has addressed this problem.

Whether or not the suggested belief can found a defence to a charge based on a breach of these Regulations is a matter of statutory construction. No Hong Kong case binding upon me has held as a matter of construction that these Regulations provide for the belief to be a defence. I decline so to construe them.”

95.The views expressed by Deputy Judge Line have our support.

96.The court in Fong Chin Yue (supra), having found 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”, expressed the concern of convicting blameless persons in offences of strict liability at p33F-1:

“The first main point. Of those, the first is this. We are satisfied that vigilance…would be promoted by strict liability in the sense of it being unnecessary for the prosecution to prove knowledge that duty was outstanding. Indeed, we are satisfied that such necessity would seriously hamper if not cripple the legitimate objective of s 17, which is that duty should be paid …And we hold that there is no such necessity.

The second main point. At the same time, the second main point is that we are equally satisfied that it would do that objective absolutely no harm at all for it to be a defence if the accused proves on a balance of probabilities that he believed for good and sufficient reason that the provisions…had been complied with… Indeed, we would go on to say that, quite plainly, the availability of such a defence would actually advance that objective. It would advance it by permitting it to be attained without convicting blameless persons.”

97.The judgment in Fong Chin Yue (supra) refers to cases in other common law jurisdiction, including Maher v Musson (1934) 52 CLR 100 and Proudman v Dayman (1941) 67 CLR 536 ((High Court of Australia), R v City of Sault Ste Marie (1978) 85 DLR (3d) 161 (Supreme Court of Canada) and Millar v Ministry of Transport (1986) 2 CRNZ 216 (New Zealand Court of Appeal).

98.Fong Chin Yue (supra) concerns offences relating to possession of or dealing with dutiable goods. Maher v Musson (supra) concerns an offence of possession or having custody of illicit spirit when the spirit had been stolen from a distillery before it came into the possession of the defendant. In both cases, whilst mens rea was not a necessary ingredient of the offence under consideration, it was a necessary ingredient for other similar offences within the same statute.

99.Bokhary JA (as he then was) made it clear at p 37H-p 38C:

“As it happens, such a defence is expressly made available where the charge is under s 17(2), which creates an offence somewhat different from the one with which we are concerned. For that subsection and the proviso thereto read:

No person shall have in his possession, custody or control any goods knowing  that in respect thereof an offence against the Ordinance has been committed:

Provided that no person shall be convicted of an offence against this  subsection if he proves that when such goods came into his possession,  custody or control he had good and sufficient reason to believe that the  provision of this Ordinance relating to the goods had been complied with.

One theoretically possible view might be that the legislature intended such a defence should be available in respect of sub-s (2) of s 17 but not in respect of the other subsection thereof. But, under the relevant rules of construction, that view is unwarranted. At the very least, there are reasonable rivals, including the view that the legislature thought that the defence would be available in respect of the other subsection anyway unless expressly removed.”

100.The head-note in Maher v Musson (supra) also states:

“The magistrate dismissed the information. He said that his opinion as that mens rea, or knowledge that the spirit was illicit, was not a necessary ingredient of an offence under sec. 74(4). But, he continued, the facts proved in the case were that the illicit spirit was purchased, and in view of sec. 74(7) as to purchase, here knowledge was necessary, and in view of the fact that he had held that on the evidence he could not say the defendant had such knowledge, he did not think, in all the circumstances, that he should convict merely because the defendant was, upon those facts, charged under sec. 74(4).”

101.Further, the offences in Fong Chin Yue and Maher v Musson related to possession, custody of other physical dealing of an article, not intrinsically villainous, but its character could have been the result of antecedent breaches of the law by other persons.

102.Dixon J, in the majority decision of Maher v Musson (supra)emphasized at p 105 of the judgment:

“But, although in the present case the subject matter is revenue, I do not think this defence (an honest and reasonable belief) should be treated as excluded. The provision relates not to any act or omission, which is directly connected with the machinery for collecting or safeguarding revenue. It relates to possession, custody or other physical relation to an article. Its nefarious character is not intrinsic, but arises from antecedent breaches of the law generally by other persons.”

103.In our view, the common law defence of honest and reasonable mistaken belief, an obiter dictum in Fong Chin Yue (supra), even if arguable, only applies when the act or omission complained of relates not to the intrinsic nefarious character of an article or equipment over which a defendant can have no control, either personally, or through an agent or a servant. The gondola does not fall within such a category.

104.Both Proudman v Dayman (supra) and Millar v Ministry of Transport (supra) concerned an offence of driving whilst disqualified and it was held that mens rea is an ingredient of the offence. One of the reasons for so holding was that disqualified driving did not necessarily involve public safety. In Millar v MOT (supra), Cooke P & Richardson J said at p 226 of the judgment:

“A tendency to imperil the public safety is not the main reason for penalising disqualified driving. The driving itself may be perfectly safe. Often, though not invariably, the original cause of disqualification will have been in some way related directly or indirectly to public safety, but the offence of disqualified driving is not created for that reason: the dominating purpose is to ensure enforcement of Court orders. There is insufficient reason for declining to apply to this offence what Lord Reid called a universal principle. In other words mens rea, in the sense of guilty knowledge should be understood to be an ingredient of the offence.”

105.The decision in R v City of Sault Ste Marie (supra) ultimately rested on the interpretation of the relevant act. Dixon J said at p 181:

“I conclude, for the reasons which I have sought to express, that there are compelling grounds for the recognition of three categories of offences rather than the traditional two:

(1)        Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence.

(2)        Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts, which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability. Mr Justice Estey so referred to them in Hickey’s case.

(3)        Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault.

Offences which are criminal in the true sense fall in the first category. Public offences would, prima facie, be in the second category. They are not subject to the presumption of full mens rea. An offence of this type would fall in the first category only if such words as ‘wilfully’, ‘with intent’, ‘knowingly’, or ‘intentionally’ are contained in the statutory provision creating the offence. On the other hand, the principle that punishment should in general not be inflicted on those without fault applies. Offences of absolute liability would be those in respect of which the Legislature had made it clear that guilt would follow proof merely of the proscribed act. The over-all regulatory pattern adopted by the Legislature, the subject matter of the legislation, the importance of the penalty, and the precision of the language used will be primary considerations in determining whether the offence falls into the third category.”

106.Whether the gondola is properly maintained relates to its intrinsic character. The intention of the legislation to make the offence in question an offence of absolute liability is clear when it imposes on “the owner” the duty “to ensure” that it is not used…unless it is properly maintained.

107.More importantly, the offence in question concerns public safety. When it comes to public health/safety and in order that fewer guilty men might escape, it may be necessary, in the public interest, to convict morally blameless persons if “blameless” persons refers to people who lack mens rea.

108.Fong Chin Yue (supra) and the cases referred thereto are not authorities supporting the proposition that the “common law due diligence defence” applies to all cases of “strict liability”. In our view, such a defence does not apply to an offence involving public safety under the Ordinance and the Regulations.

109.The fact that a person put in charge of a suspended working platform for a short time could end up being liable is neither nor there. That is what “strict liability” is all about. “Where strict liability is imposed, the defendant incurs criminal liability though he was ignorant of one or more of the factors which rendered his conduct criminal, and even though he was blamelessly inadvertent because his ignorance is not attributable to any default or negligence on his part” (Halsbury’s Laws of England 4^th Edit Vol 11(1) at para 15)

110.However short the period that an “owner” is put in charge of a suspended working platform, he is obliged to ensure, under the Ordinance and the Regulations, that the suspended working platform is properly maintained before it is used for carrying persons.

111.Lord Reid in Sweet v Parsley [1970] AC 132 was blunt when he said at p 148: “Our first duty is to consider the words of the Act: if they show a clear intention to create an absolute offence that is an end of the matter.”

112.Lord Pearce put it this way at p 156: “Those who undertake various industrial and other activities especially where these affect the life and health of the citizen, may find themselves liable to statutory punishment regardless of knowledge or intent, both in respect of their own acts or neglect and those of their servants.” (Emphasis added)

113.In R v Howells [1977] AC 614, the English Court of Appeal had to consider if reasonable and honest belief was a defence to an offence of possession of a firearm, an offence of strict liability, Browne LJ, in giving the judgment of the Court, said at p 626:

“This court has reached the decision that section 1 should be construed strictly. First, the wording would, on the face of it, so indicate. Secondly, the danger to the community resulting from the possession of lethal firearms is so obviously great that an absolute prohibition against their possession without proper authority must have been the intention of the Parliament when considered in conjunction with the words of the section. Thirdly, to allow a defence of honest and reasonable belief that the firearm was an antique and therefore excluded would be likely to defeat the clear intention of the Act.” (Emphasis added)

114.In AG v Gammon (HK) Ltd and Others [1983] HKLR 93, Sir Alan Huggins VP made the following comments at p 99 B-E on “an offence of strict liability”:

“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 of 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 the mens rea only if the employee is of such a status that he is the alter ego of the employer…..On the other hand there is importance in the distinction drawn in Lam Chin-aik between cases where there is a prohibition and where punishment of breaches of prohibition would tend to ensure compliance and cases where to treat the prohibition as absolute would not ensure compliance.”

115.To ensure compliance with the Ordinance and the Regulations, it is necessary to treat the offence in question as an offence of absolute liability and that “honest and reasonable belief, albeit an erroneous one” is not a valid defence. The possible conviction of a blameless person, a person who does not have the necessary mens rea to commit a criminal offence, is not a relevant concern. The policy consideration, in our view, requires such an approach in the construction of safety regulations.

116.Otherwise, the intention of the legislation to ensure public safety can be easily defeated when the appellant, being the “owner” is not liable when the gondola is not properly maintained because the duty to maintain the gondola has been entrusted to an independent maintenance contractor, and the independent maintenance contractor is not liable because it is not an “owner” within the meaning of the Regulations.

117.The offence in question is the failure to “ensure” the proper maintenance of the gondola. The word “ensure” “is used in the common and colloquial sense in which ‘making sure’ is used, that is, as equivalent to ascertaining or satisfying oneself…” (Per Vaisey J., in Reliance Building Society v Harwood Stanfer [1944] Ch 362 at 373). “Ensure”, means “make sure”, “convince”, “guarantee, warrant”, and “make certain the occurrence of an event, situation, outcome etc” (The New Shorter Oxford English Dictionary).

118.In our view, “ensure” denotes positive and vigorous measures to achieve the occurrence or arrival of an event or in the attainment of result, and the duty to ensure is not discharged by a passive reliance on others.

119.What should be the proper inferences to be drawn from the language of the Ordinance and the Regulations?

120.Bearing in mind the offence in question is one of strict liability, could the appellant, in defence to the allegation of failure to ensure the proper maintenance of the gondola (involving its intrinsic condition), simply suggest that it had engaged a competent professional contractor to carry out the maintenance work in accordance with a statutory regime when there was no indication that the contractor had been negligent?

121.Lord Diplock in Sweet v Parsley [1970] AC 132 said at p 163:

“But where the subject matter of a statute is the regulation of a particular activity involving potential danger to public health, safety or morals in which citizens have a choice as to whether they participate or not, the court may feel driven to infer an intention of Parliament to impose by penal sanctions a higher duty of care on those who choose to participate and to place upon them an obligation to take whatever measures may be necessary to prevent the prohibited act, without regard to those considerations of cost or business practicability which play a part in the determination of what would be required of them in order to fulfil the ordinary common law duty of care.”

122.In Lam Chin Aik v R [1963] AC 160, Lord Evershed, in delivering the judgment of the court, explained why those in charge of the relevant activities should be made responsible for seeing that the statutory regulations were complied with. He said at p 174:

“Where the subject-matter of the statute is the regulation for the public welfare of a particular activity - …it can be and frequently has been inferred that the legislature intended that such activities should be carried out under conditions of strict liability. The presumption is that the statute or statutory instrument can be effectively enforced only if those in charge of the relevant activities are made responsible for seeing that they are complied with…Thus sellers of meat may be made responsible for seeing that the meat is fit for human consumption and it is no answer for them to say that they were not aware that it was polluted. If that were a satisfactory answer, then as Kennedy LJ pointed out in Hobbs v Winchester Corporation [1910] 2 KB 471, the distribution of bad meat (and its far-reaching consequences) would not be effectively prevented.”

123.In AG v Gammon (HK) Ltd and Others (supra), the Court of Appeal saw no injustice in the imposition of heavy penalties for offences of strict liability “whether resulting from intentional infringement of the law, negligence, or incompetence.” Sir Alan Huggins VP said at p 96 I-p 97C of the judgment:

“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 or 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…”

124.In our view, even if “the common law due diligence defence” was available, the appellant could not escape liability, when there was a failure to ensure the proper maintenance of the gondola, by simply saying that it had engaged a competent professional contractor to carry out the maintenance work under a statutory regime involving regular inspections, testing and certifications. If the appellant were allowed to put up such a defence, the intention of the legislation to ensure public safely would be easily defeated.

125.In the present case, the inspection and certification undertaken under the statutory regime were clearly insufficient to ensure the proper maintenance of the gondola when the defects in the oil drums and the thinning of the screw threads of the eastern jib were not detected and rectified. However extensive and comprehensive was the maintenance arrangement made by the appellant, it had failed to ensure that the gondola was properly maintained.

126.Despite the warning by BESO on an earlier occasion of the need to check and replace other wearing parts of the gondola, the appellant did not take steps to ensure that the oil drums, the gear box and the internal threads of the eastern jib were properly checked and, if necessary, replaced.

127.The suggestion that one part of the gondola required replacement did not mean that other parts also required replacements is not an argument that we can accept in the light of the statutory obligation to ensure the proper maintenance of the gondola. The magistrate’s finding of a periodical dismantling of the gondola to see if there is any internal defect is not, in our view, unreasonable at all. It is just good common sense for the appellant to do so in the discharge of its statutory duty to ensure that the gondola is properly maintained.

128.Mr Dykes argues that the appellant, as an artificial person with no relevant professional qualification or expertise and who has to employ a specialist contractor, over whom he has little control and no influence with regard to technical matters and upon whom he must rely, should not be held liable for the negligence of the contractor.

129.The simple answer is that the appellant should not have allowed such state of affairs to exist. “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”. The appellant “must 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” (Per Sir Alan Huggins VP in AG v Gammon (HK) Ltd and Others (supra). There was, after all, a personal obligation and a non-delegable duty on the part of the appellant to ensure that the gondola was properly maintained.

Conclusion

130.The gondola in question was not properly maintained and the appellant had failed to ensure it was so. The offence was one of absolute liability. “The common law due diligence defence” is not available as a defence to the offence in question and, even if had been, the appellant had not make it out.

Hon Stock JA:

131.In the case of all statutory instruments that render specific acts or omissions a crime, one starts from a presumption that mens rea is required and if it be suggested that it is not, then that must be established by showing that the legislature has displaced that presumption by clear words or necessary implication: see Gammon ( Hong Kong) Ltd v A-G [1985] AC 1 at 14; R v K [2002] 1 AC 462 at para 32; and Smith & Hogan Criminal Law 12th ed., para 7.3.

132.In my view that is shown in this case not only by the subject matter but more particularly by the words used. 

133.The duty under regulation 4 is to ensure that the platform is not used unless the  platform is properly maintained.  That is a duty framed as such in respect of almost each obligation in these particular regulations.  One can safely assume that the word "ensure" was deliberately used by the draftsman.

134.To ensure is to make sure, to make certain, to satisfy oneself that a state of affairs in fact exists.  The duty imposed is one that, in my opinion, goes beyond a duty to take reasonable steps to ensure safety of those who might be placed at risk by their engagement in platform work.  It is, rather, a duty to ensure that they are in fact safe.  It is therefore a non-delegable duty of care; a special responsibility to see to it that a state of affairs exists, a distinction to which reference is made, albeit in the context of civil liability, by Gleeson CJ in Leichhardt Municipal Council v Montgomery (High Court of Australia, 27 February 2007, unreported, para 6).  No defence is provided - as it might have been and as one finds in other safety regulations - to show that it was not reasonably practicable for the person to comply or that the commission of the offence was due to causes over which the person had no control.

135.In Attorney General v Shun Shing Construction and Engineering Co Ltd [1986] HKLR 311, a contractor responsible for a construction site was charged with failing to ensure that a power driven winch was not used for raising persons otherwise than in accordance with (the now repealed) reg. 37(1) of the Construction Sites (Safety) Regulations, Cap 59. The defence proffered was that the contractor had taken all reasonable steps to ensure that the winch would not be used in breach of the regulations.  The Court noted, at 314, another regulation made at the same time whereby the contractor was required “to take all reasonable steps to ensure" a certain state of affairs and concluded that: " ‘Ensure’means what it says and, if the prohibited act occurs, there has necessarily been a failure to ensure that it did not occur.”  There is no contrasting provision in the particular regulations with which we are concerned that uses the phrase "take all reasonable steps to ensure,” but that fact is hardly determinative of the issue: it is a phrase that could readily have been used, and similar phrases are used in other regulations promulgated under the same Ordinance (for example, in the Construction Sites (Safety) Regulations themselves).

136.It does not appear to have been argued in Shun Shing Construction that there might be a halfway house (as it is called in Smith & Hogan, above, at para 7.5.1) between strict liability and full mens rea such as is embraced in Fong Chin Yue, where in certain statutory contexts it is a defence for an accused to prove on a balance of probabilities that he reasonably, albeit mistakenly, held a belief which if true would have amounted to a defence.

137.Whether such a halfway house defence is available is a matter of instance- specific statutory construction, with keen regard to the words used and the subject matter.  In the present instance, the words used and the context do not in my judgment allow of such a defence.  The words used impose a non-delegable duty.  To point to the negligence of others (in this case the competent person appointed by the owner) is to do no more than to contend that the duty is delegable.  The negligence of the competent person must in this context effectively be deemed to be that of the owner, the more so since the competent person does not fall within the definition of ‘owner’ for the purpose of the regulations and the competent examiner is not rendered liable to prosecution in the event of his negligence.  His criminal liability under the regulations is limited to a breach of reg 21 (the duty to make certain reports to the owner) and to the delivery of a report to an owner which he knows to be false: see reg 31.

138.It is said that the effect of this construction is to render liable an overseer or foreman in circumstances that can never have been intended.  I do not agree.  The overseer or foreman in contemplation by the definition of "owner" is a person who is in charge, or has control or management, of a suspended working platform.  The operation of working platforms regularly engages a risk to life and it is sensible to assume an intention on the part of the legislature to impose a personal non-delegable duty on those in control of these contraptions.

139.For these reasons, I too would dismiss this appeal. 

Hon Stuart-Moore VP:

140.Accordingly, the appeal is unanimously dismissed. Any application for costs of the appeal should be made within 14 days from the date of the handing down of this judgment.

Mr J Reading SC and Mr Joseph Wong, SGC of the Department of Justice for the Respondent.

Mr Philip Dykes, SC and Ms Toby R W Jenkyn-Jones instructed by Messrs JSM for the Appellant.