Attorney General v. Hong Kong Convention Centre Limited
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CACC000068/1976 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 68 OF 1976 -----------------
----------------- Coram: Leonard J. in Court Date of Judgment: 24th February, 1976. ----------------- JUDGMENT ----------------- 1. This was an appeal by way of case stated from a decision of the magistrate whereby he acquitted the respondent on a charge that on the 15th of June 1975, it, being the occupier of premises on the 1st to the third floors of the World Trade Centre, Canseway Bay carried out work in relation to the installation of furnaces without approval having been obtained under the Clean Air (Furnaces Ovens and Chimneys) (Installation and Alteration) Regulations 1972. At the hearing I allowed the appeal and sent the papers back to the learned magistrate with a direction that a case had been established against the respondent. I promised to give my reasons in writing. 2. The Regulations in question, as their name forewarns, are a laborious piece of legislation. They were drafted, one might imagine without being too fanciful, by one smothered by the smog which the Regulations seek to alleviate, Under s.15 of the Clean Air Ordinance the Governor-in-Council is empowered by Regulations to provide for (inter alia):
It was in pursuance of these powors that the Regulations the subject of this appeal wore framed. 3. The facts giving rise to the prosecution were as follows: commencing on the 15th June 1975 town gas furnaces were installed in the kitchen of the respondent. There were several of these and their total maximum gas consumption was 62.49 therms per hour. It is common case that no one of the furnaces consumed more than 10 therms per hour. The installation was carried out without the approval of a competent authority having been obtained. 4. Regulation 11 of the Regulations in question provides:
However Regulation 3 of these Regulations reads as follows:
It will be not noted that what Regulation 11 forbids is the carrying out by an occupier of work in his premises. What Regulation 3 exempts from the operations of the Regulations are "premises" and in order that the Regulations shall not apply to premises they must be premises on which work is intended to be carried out in relation to the installation, alteration or modification of, in our particular case, a furnace which consumes not more than 10 therms of any gaseous fuel per hour. On the premises occupied by the respondent work was to be carried out in relation to the installation of a number of furnaces and although none of them consumed more than 10 therms of gaseous fuel per hour all of them could consume well over that amount. I can see nothing in the Regulations themselves nor in their apparent Ordinance to indicate that s.7(2) of the Interpretation Ordinance is not to apply to the Regulations or to Regulation 3. I therefore consider that the Regulations do apply to premises on which work is carried out in relation to the installation of furnaces which consume more than 10 therms in totality although none of them consumes more than that amount. 5. In order to escape liability under Regulation 11 an occupier of premises must show that they are such as not to attract the application of the Regulations. The operative word in Regulation 3 is "premises" and the respondent's premises are not within the description of those to which the Regulations do not apply. The learned magistrate appears temporally to have lost sight of the fact that the draftsman used the word "premises" and by Regulation 3 exempted premises rather than furnaces for in paragraph 6 of his case stated he says:
However he puts the question of law arising clearly in paragraph 7 i.c.:
The answer to this question must be in the affirmative since such premises are not "premises on which work is intended to be carried out in relation to the installation ... of a furnace ... which consumes not more than .. ten therms of gaseous fuel per hour. The case was accordingly remitted to the magistrate with a direction that a case has been established against the defendant.
Representation: Mr. Reid, C. C. for the Crown/Appellant. Mr. Kenneth Kwok (Deacons) for the Respondent. |