HKSAR v. Intelligent Enterprises Ltd

[English Translation — 英譯本]

HCMA 134/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATION REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.134 OF 2013

(ON APPEAL FROM ESCC 21530/2012)

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BETWEEN

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JUDGMENT

Introduction

1.At the conclusion of the hearing held on 25 April 2013, I adjourned the case for judgment. In delivering my judgment today, I uphold the decision of the trial magistrate and dismiss the appeal. The reasons for my judgment are set out below.

Background and the charge

2.The appellant Intelligent Enterprises Limited (the defendant company at the trial) was charged that on 13 December 2011, being the operator of Hong Fook Sanatorium For the Aged Home (hereinafter referred to as “Hong Fook”), classified as a “care and attention home” according to the licence issued and situated at Flat E, 3/F, Maylun Apartments, 23 Shu Kuk Street, North Point, Hong Kong, it failed to employ a health worker and an ancillary worker in compliance with the provisions of section 11(1) and/or Schedule 1 to the Residential Care Homes (Elderly Persons) Regulation (Cap.459A), and was thereby in contravention of section 11(1) and 36(1) of the Regulation.

3.The appellant denied the charge, and was tried before Special Magistrate Lau Suk-han. The magistrate convicted the appellant after trial of failing to employ a health worker in compliance with the provisions of section 11(1) and Schedule 1 to the Residential Care Homes (Elderly Persons) Regulation (Cap.459A). The appellant was fined 5,000 HK dollars.

4.The appellant now appeals to this Court against the conviction, seeking to overturn the verdict of the trial magistrate.

The case of the prosecutionandthe defence

5.The operator of a “care and attention home” must comply with the requirements specified in Schedule 1 to the Residential Care Homes (Elderly Persons) Regulation by employing a home manager, an ancillary worker, a care worker and a health worker.

6.The defence agreed that only three employees were present in Hong Fook at the time of the offence, namely (1) Tang Sheung Ni, (2) Sheung Ching, and (3) Wong King Wai.

7.The defence claimed that the defendant company had arranged for sufficient manpower at the time of the offence, with (1) Tang Sheung Ni working as a home manager, (2) Sheung Ching working as an ancillary worker, (3) Wong King Wai working as a care worker, and (4) Wong Wing Hung working as a health worker. The defence stated that although Sheung Ching was employed as a care worker, he/she was then substituting for the ancillary worker Chan Ngan Ying, who was on sick leave. As for the health worker Wong Wing Hung, she left the home in the course of her duty to discuss a resident's illness with the defence witness Lee Chun Kwok, so Wong Wing Hung was still on duty even though she was not present in Hong Fook.

The prosecution’s evidence

8.Prosecution witness Tong Mei Fan (hereinafter referred to as “Tong”), an inspector of the Licensing Office of Residential Care Homes for the Elderly under the Social Welfare Department, conducted an inspection of Hong Fook together with her colleagues on 13 December 2011.

9.When she arrived at the home at 9.25 am, she saw only two employees there, namely the home manager Tang Sheung Ni and Sheung Ching. Both of them were not in uniform. The care worker Wong King Wai also arrived ten minutes later.

10.According to its licence(P4), Hong Fook is classified as a “care and attention home”; its residents are old people aged over60, who are in poor health and suffer from functional degeneration of the body to the extent that assistance in their activities of daily living is required.

11.Tong stated that Hong Fook, as a “care and attention home”, was without a health worker and an ancillary worker at the relevant time.

12.Tong had asked Sheung Ching about his/her position in Hong Fook and checked his/her identity card.

13.Wong Wing Hung, a director of Hong Fook, returned to the home at about 11 am. She claimed at the time that she worked as a substitute health worker in Hong Fook. Apart from Wong Wing Hung, nobody else claimed to be an ancillary worker or a health worker.

14.Tong stayed in Hong Fook from 9.25 am to 11.32 am. During that period, not a single nurse was present in the home, nor did anyone claim to Tong that she was a nurse.

15.Tang Sheung Ni produced to Tong a copy of the residents admission record (P8). Tong then counted the number of the beds in the home and checked the identity of the residents against the record. There were seven residents present in the home at that time, and one of the residents had been admitted to the hospital.

16.Tong gave the following evidence under cross-examination:

(1) Tong agreed that the law required a health worker or a nurse to be on duty;

(2) Tong knew that Wong Wing Hung and the defence witness Lee Chun Kwok were health workers registered with the Social Welfare Department;

(3) Tong agreed that the column for other additional conditions in the licence (P4) was left blank;

(4) Tong agreed that there were no specific requirements in respect of the qualification of an ancillary worker; and

(5) Tong agreed that if an ancillary worker of the home went on leave, the home could make prior arrangements for another employee of the home to substitute for him/her. There was a book in the home containing daily records of the positions of the employees on duty. In the case of a relief staff, it must be specified whether he/she was performing his/her original duties or the duties of the employee he/she substituted for. On the day when she visited the home, Tong did not see records of any such arrangements having been made by the home.

17.Tong added that the job of a health worker involved caring skills, but such skills were not required of an ancillary worker. Thus, whilst a health worker could substitute for an ancillary worker, the latter could not substitute for the former.

The defence’s evidence

18.The defence witness Lee Chun Kwok (hereinafter referred to as “Lee”) and his wife Wong Wing Hung were directors of the defendant company, which operated Hong Fook. They were both health workers registered with the Social Welfare Department and worked in Hong Fook.

19.Chan Ngan Ying, an ancillary worker of Hong Fook, went on leave on 13 December 2011 due to injury at work. The home arranged for Sheung Ching (who was employed as a care worker) to substitute for Chan Ngan Ying as an ancillary worker. Chan Ngan Ying had been on leave for quite some time before the inspection.

20.Lee and Wong Wing Hung arrived at Hong Fook as early as 7 am on 13 December 2011. Lee had to go to the Eastern Hospital that day for follow-up treatment of his own illness, receiving examinations and making arrangements for his admission to the hospital. Seeing that the home was in normal operation with Wong Wing Hung working therein, he left for the Eastern Hospital for follow-up treatment.

21.At 10 am on the same day, Wong Wing Hung went to the Eastern Hospital to see Lee, where they discussed the health problems of a resident Lau Shu Fan. Wong Wing Hung stayed at the Eastern Hospital for 30 to 40 minutes before returning to Hong Fook.

22.The duties of a health worker include caring for the residents, dispensing and giving out medications, accompanying the residents on their follow-up treatments and taking them to the hospital, etc. According to Lee's explanation, residents have to be accompanied to the hospital by a health worker because he/she knows well about their health conditions and could therefore draw to the doctors' attention the residents’ specific health problems.

23.Hong Fook does not require its employees to wear uniform at work. The general duties of an ancillary worker include cleaning work, paperwork and accounting. Some homes would assign ancillary workers to work as drivers, but Hong Fook does not do so since it is a small operation. An ancillary worker does not need to register with the Social Welfare Department, and Sheung Ching was arranged to substitute for Chan Ngan Ying as an ancillary worker on the day in question.

24.Lee gave the following evidence under cross-examination:

(1) Lee agreed that he was not present at the inspection of the Social Welfare Department;

(2) The words “Sheung Ching (care)” appear on Hong Fook’s attendance register (P7)for the month of December. Lee explained that Sheung Ching was employed by Hong Fook as a care worker;

(3) According to the attendance register (P7), Lee did not sign in or record the time of his reporting to duty on 13 December 2011. Lee explained that he was too busy at work and forgot to keep the records. Other employees also did not sign in on that day, but they were on duty on that day. The “Mrs Lee” appeared on the register referred to his wife Wong Wing Hung;

(4) Lee stayed in Hong Fook until 8 o'clock or some time before 8 o'clock on that day, and then left for the Eastern Hospital for follow-up treatment;

(5) Lee admitted that the Social Welfare Department required employees to keep records when they left the home, but it was only an oral suggestion by the Social Welfare Department, there were no codes of practice or provisions, Hong Fook often failed to keep such records;

(6) Lee said that when he did not report for duty due to sickness previously, his duties were taken up by Wong Wing Hung while he was on leave. He admitted that he would not know whether Wong Wing Hung did take up his duties after he had left Hong Fook on the day of the offence. He saw Wong Wing Hung at Hong Fook at 7 o’clock, and believed Wong Wing Hung would still be at work after his departure;

(7) Lee left the Eastern Hospital after staying there until some time after noon;

(8) Employees who were on duty in Hong Fook on 13 December 2011: (1) Tang Sheung Ni (home manager), (2) Sheung Ching (ancillary worker), (3) Wong King Wai (care worker), and (4) Wong Wing Hung (substituted for Lee as a health worker);

(9) Lee said that the duty roster (P6) was a monthly record of the attendance of employees, the records were kept by Tang Sheung Ni. Lee agreed that the arrangements of Sheung Ching working as a substitute ancillary worker was not recorded in the employment record (P5), the duty roster (P6) or the attendance register (P7);

(10) Lee agreed that he was a director of the defendant company and also held a 50% shareholding in the company. He was aware of the requirements on the staff to be employed and the number of employees to be on duty in respect of a residential care home; and

(11) Lee said that the employees sometimes had to leave their post whilst on duty. For instance, if a resident needed to go to the ground floor but the lift in the home could not get there directly, an employee would have to leave the home to take the resident to the ground floor. Thus an employee on duty did not necessarily stay inside the home. Lee said that the employees sometimes needed to discuss matters with the relatives of the residents outside the home or take residents to the hospital, they would be working away from the home under those circumstances. The law failed to address these practical operation problems.

The findings of the magistrate

25.The magistrate made the following findings:

34. I have carefully observed the demeanour of Tong while she wasgiving evidence, and have also carefully examined her testimony and evidence. I find Tong's evidence clear and precise, logical andcandid, and she was not shaken under cross-examination. I am satisfied that she is an honest and reliable witness, and accept her evidence as true.

35. But I bear in mind that if the evidence of the defence witnessis true or may be true, or there is a reasonable doubt in the evidence, I will have to find the defendant company not guilty.

36. I have carefully observed the demeanour of Lee while he was giving evidence, and have also carefully considered his testimony and evidence. I find him a candid witness. I have referred to the duty roster (P6) and noticed that Chan Ngan Ying has gone on sick leave for quite some time. I cannot rule out the possibility that Lee told the truth in saying that Sheung Ching substituted for Chan Ngan Ying as an ancillary worker, who was on sick leave due to injury at work, even though the defendant company is negligent in failing to keep documentary records.

37. As for Wong Wing Hung, although Lee said Wong Wing Hung substituted for him as a health worker, I find as Lee said in his evidence that he had no idea whether Wong Wing Hung was still working in the home after he had left Hong Fook. As to Lee's evidence that Wong Wing Hung went to the Eastern Hospital to see him at 10 am to discuss the health problems of a resident Lau Shu Fan, I rule it as hearsay evidence since Wong Wing Hung did not testify. I only accept that Wong Wing Hung went to the Eastern Hospital to see Lee at 10 am. I find Lee's evidence fails to prove that Wong Wing Hung substituted for him at the time of the offence and worked as a health worker in Hong Fook.

38. I find that the course of event is as described by the prosecution witness, namely, when the Social Welfare Department conducted the inspection at Hong Fook at 9.25 on 13 December 2011, only the home manager Tang Sheung Ni and the ancillary worker Sheung Ching were found on duty. The care worker Wong King Wai only returned to the home about ten minutes later. There was no health worker on duty in Hong Fook at that time, the health worker Wong Wing Hung only returned to the home some time after 11 o'clock.

39. As the appellate judge says in paragraph 16 of its judgment of HKSAR v Peaceful Elderly Centre Limited (HCMA 789/2008), even if a residential care homehas in its employment of staff complies with the minimum requirements of manpower laid down in Schedule 1, it does not mean that it has fulfilled its obligations. It still has to ensure that the manpower of the staff on duty fulfils the requirements of the law, so as not to affect the quality of the necessary services provided by a residential care home.

40. I find that as the operator of Hong Fook, the defendant company has not complied with the provisions of section 11(1) and Schedule 1 to the Residential Care Homes (Elderly Persons) Regulation (Cap.459A) by failing to employ a health worker on 13 December 2011.

41. I find that the prosecution has proved beyond reasonable doubt the defendant company's failure to employa health worker. The defendant company is convicted as charged.

Grounds of appeal

26.The appellant raises a number of grounds of appeal, there are three major complaints:

(1) The magistrate erred in failing to examine whether the prosecution evidence was sufficient to prove beyond a reasonable doubt the appellant's commission of the offence. Instead, she only examined the defence’s evidence to find if it could prove that the appellant did employ a health worker at the time of the offence. The magistrate has reversed the onus of proof and thus erred in a matter of principle.

(2) Regarding Lee’s evidence that Wong Wing Hung went to the Eastern Hospital to see Lee at 10 am to discuss the health problems of a resident Lau Shu Fan, the magistrate erroneously ruled it as hearsay evidence on the ground that Wong Wing Hung did not testify, and only accepted that Wong Wing Hung went to the Eastern Hospital to see Lee at 10 am. The magistrate was wrong in finding that Lee’s evidence was not capable of proving that Wong Wing Hung substituted for Lee as a health worker in Hong Fook at the time of the offence.

(3) The magistrate had wrongly adopted the principle laid down in HKSAR v Peaceful Elderly Centre Limited & two others (HCMA 789/2008, 20/2/2009, unreported) as the basis of convicting the appellant of the offence. This was because that although the health worker Wong Wing Hung was not in the home between 9.25 am and 11 am on that day, the appellant did employ her as a health worker in compliance with the requirements specified in Schedule 1 to the Residential Care Homes (Elderly Persons) Regulation.

The respondent’s submission—the appellant’s arguments

27.The respondent referred to the appellant’s arguments in its submission and responded to them.

28.The respondent asserted that there was nothing improper for the magistrate to rule as hearsay Mr Lee’s evidence that Wong Wing Hung went to the Eastern Hospital to see him at 10 am to discuss the health problems of a resident Lau Shu Fan. The reason was that Mr Lee was not present in the home at all, and therefore would not know if anything happened in the home after he had left (including whether Lau Shu Fan had any health problems during that time that required Wong Wing Hung to leave the home urgently and went to the hospital to see him to discuss the matters).

29.According to what PW1 Tong observed, Wong Wing Hung only went back to the home two hours after her arrival at Hong Fook. There was no evidence indicating that Wong Wing Hung was on duty at the time when the Social Welfare Department was conducting the inspection. The magistrate was correct to rule that there was no health worker on duty in Hong Fook between 9.25 am and 11 am.

30.The appellant submitted that since the magistrate could not rule out the possibility that Sheung Ching did work as a substitute ancillary worker, she likewise also could not rule out the possibility that Wong Wing Hung did work as a substitute health worker. The respondent considered that there was material difference between the situations of Sheung Ching and Wong Wing Hung. According to Tong’s evidence, Sheung Ching was already on duty in the home when she arrived. The only dispute was whether she was on duty in the capacity of a care worker or an ancillary worker. Wong Wing Hung’s situation, on the other hand, was markedly different, as she only went back to the home two hours after Tong’s arrival. In view of their different situations, there was nothing illogical about the magistrate’s ruling.

31.The respondent also submitted that as Wong Wing Hung only arrived at the home at about 11 o’clock, it was reasonable and fair for the magistrate to infer that Wong Wing Hung was not substituting for Lee as a health worker on the day of the offence.

32.The appellant pointed out that according to what was stated in paragraph 16 of the judgment of HKSAR v Peaceful Elderly Centre Limited, even if a residential care home has in its employment of staff complied with the minimum requirements of manpower laid down in Schedule 1, it does not mean that it has fulfilled its obligations. The residential care home still has to arrange for relief staff to substitute for workers on leave. The appellant indicated that Lee had arranged for Wong Wing Hung to substitute for him as a health worker on the day in question, it is only that Wong Wing Hung went to the hospital to discuss with Lee the health problems of a resident during the early part of the inspection conducted by PW1. The appellant also indicated that employees (including health workers) could be away from the home whilst on duty, and cited an ancillary worker working as a driver as an example.

33.The respondent submitted that it was inappropriate for the appellant to cite the example of a driver who needed to leave the home in the course of work and placed a driver on a par with a health worker; as the duties, the nature and mode of work of the two were totally different. A driver would obviously need to leave the home in order to pick up or send off people concerned, but the job nature of a health worker was completely different.

34.The appellant also pointed out that according to clause 10.6(c) of the code of practice of residential care homes (elderly persons), the duties of a health worker included “arrangement for treatment by visiting registered medical practitioners or in outpatients clinics, casualties or hospitals”. The respondent submitted that according to the evidence, Wong Wing Hung did not leave the home for the purpose of sending residents to outpatient clinics, casualties or hospitals for treatment. Furthermore, there was no evidence indicating that something happened in the home which required the health worker to leave the home to deal with the matters.

35.In the Peaceful Elderly Centre Limited case, the judge of the Court of First Instance commented that even if a residential care home has in its employment of staff complied with the minimum requirements of manpower laid down in Schedule 1, it still has to ensure that the manpower of the staff fulfills the requirements, so as not to affect the quality of the necessary services provided by a residential care home. The respondent submitted that according to the evidence, the appellant failed to ensure that there was a health worker on duty in the home at the relevant time.

My views

36.The substantial part of the submission of Ms Irene Fan, the Senior Public Prosecutor representing the respondent, is correct. I only need to point out the parts with which I disagree.

37.Ms Fan submitted that Lee was not present in the home at all at that time, so he did not know if anything happened in the home after his departure (including whether a resident Lau Shu Fan suffered from any health problems which required Wong Wing Hung to leave the home urgently in order to go to the hospital to discuss the matter with him). Thus, there was nothing wrong with the magistrate’s ruling that Mr Lee’s evidence that Wong Wing Hung went to the Eastern Hospital to see him at 10 am to discuss the health problems of a resident Lau Shu Fan was hearsay.

38.The ruling that Lee’s evidence was hearsay evidence was wrong. Lee told the court in his evidence the reason why his wife Wong Wing Hung went to the Eastern Hospital to see him, namely to discuss the health problems of a resident Lau Shu Fan. Lee did not seek to prove Lau Shu Fan’s health problems by his evidence (the statement about health problems was hearsay), his evidence only served to show the matters he discussed with his wife, namely what transpired between him and his wife. It did not require Wong Wing Hung to give evidence in court before it could be admitted as evidence. The magistrate could either accept or reject his evidence, but to reject it as hearsay evidence and rule it out for consideration was wrong in law.

39.If the magistrate only referred to the fact regarding Lau Shu Fan’s health problems as hearsay evidence, as suggested by Ms Fan, then there was nothing wrong with her ruling. However, she failed to give a clear explanation in paragraph 37 of her statement of findings (quoted in paragraph 25 above and paragraph 40 below).

40.The magistrate said she had closely observed the demeanour of Lee while he was giving evidence, and had also carefully considered his testimony and evidence. She found him a candid witness. The magistrate had referred to the duty roster (P6) and noticed that Chan Ngan Ying was on sick leave for quite some time due to illness, so she could not rule out the possibility that Lee was telling the truth when he said Sheung Ching substituted for Chan Ngan Ying, who was on sick leave due to injury at work, even though the defendant company omitted to make a documentary record of it. It can be seen from this that the magistrate believed to a certain extent what Lee said in his evidence. The magistrate went on to say:

37. As for Wong Wing Hung, although Lee said that Wong Wing Hung substituted for him as a health worker, I find as Lee said in his evidence that he had no idea whether Wong Wing Hung was still working in the home after he had left Hong Fook. As to Lee’s evidence that Wong Wing Hung went to the Eastern Hospital to see him at 10 am to discuss the health problems of a resident Lau Shu Fan, I rule it as hearsay evidence as Wong Wing Hung did not testify. I only accept that Wong Wing Hung went to the Eastern Hospital to see Lee at 10 am. I find Lee’s evidence fails to prove that Wong Wing Hung substituted for him at the time of the offence and worked as a health worker in Hong Fook.

41.In finding that Lee’s evidence failed to prove that Wong Wing Hung substituted for him as a health worker in Hong Fook at the time of the offence, the magistrate based her finding on the following two reasons: (1) Lee said in his evidence he had no idea whether Wong Wing Hung was still working in the home after he had left Hong Fook; (2) She ruled as hearsay the evidence that Wong Wing Hung went to the Eastern Hospital to see Lee to discuss the health problems of a resident Lau Shu Fan. As the magistrate has said, Lee was a candid witness. He left Hong Fook at about 8 am and went to the hospital. He of course had no idea whether his wife continued to stay in Hong Fook after he had left, and could only say that his wife went to the hospital to see him and discuss with him the health problems of a resident Lau Shu Fan. However, he also said in his evidence that his wife substituted for him as a health worker in the home on that day. If it were pointed out to the magistrate that the ruling of hearsay evidence was wrong, would she accept Lee’s evidence in this regard? I cannot offer an easy and reasonable answer. I can only say that Lee’s evidence in this regard may be sufficient to constitute a reasonable doubt, namely that his wife did substitute for him as a health worker in the home on that day. Furthermore, it is consistent with Tong’s evidence, as she told the court that at about 11 am on that day, Wong Wing Hung, a director of Hong Fook, said upon her return to the home that she worked as a substitute health worker in Hong Fook.

42.However, does this reasonable doubt in the facts constitute reasonable doubt in the charge? As it is an undisputed fact that Wong Wing Hung was not present in the home between 9.25 and 11 o’clock on that day, two questions arise:

(1) According to the Peaceful Elderly Centre Limited case, apart from complying with the minimum requirements of manpower laid down in Schedule 1, a residential care home still has to ensure that the manpower of the staff fulfills the requirements, so as not to affect the quality of the necessary services provided by a residential care home. Thus the appellant must ensure that a health worker was on duty in the home at the relevant time, but the appellant has failed to do so;

(2) Indeed, even if there is no dispute that Wong Wing Hung went to the Eastern Hospital to discuss with Lee the health problems of a resident, there is still the question of whether the appellant has committed an offence because of her absence from the home at the material time? Question (2) involves the issue of under what circumstances can the health worker of a “care and attention home” leave the home for a period of time but is still deemed to be on duty in the home and thus there is no contravention of the law?

43.Section 11(1) of the Residential Care Homes (Elderly Persons)

Regulation (Cap. 459A) provides:

(1) The operator of a residential care home shall, according to the particular type of residential care home, employ a person as-

(a) a home manager;

(b) an ancillary worker;

(c) a care worker;

(d) a health worker; and

(e) a nurse.

44.The heading of Schedule 1 to the Regulation is “Employment of Staff”. In Schedule 1, the requirement about health worker applicable to the appellant in this case which is a “care and attention home” states as follows:

“Unless a nurse is present, 1 health worker for every 30 residents or part thereof, between 7 am and 6 pm.”

(Emphasis added.)

45.In the Peaceful Elderly Centre Limited case, Deputy Judge Maggie Poon (as she then was) said:

16. In my judgment, what counsel submitted above is tantamount to saying that a residential care home has fulfilled its duties when its employment of staff complies with the minimum requirements of manpower laid down in Schedule 1, so that it can allow any staff to go on leave at any time and does not need to ensure that the manpower of staff complies with the requirements. If that is the case, the minimum requirements of manpower will become ineffectual. When the manpower of the staff on duty is insufficient, the quality of the necessary services provided by a residential care home will be directly affected. The absurdities in counsel’s arguments are self-evident. As a matter of fact, according to the conditions attached to the licence and the “Codes of Practice” mentioned in section 22 of the Residential Care Homes (Elderly Persons) Ordinance, even after a residential care home has in its employment of staff complied with the minimum requirements of manpower laid down in Schedule 1, its operator still has the obligation to ensure that the manpower of the staff complies with the requirements, including the arrangement for relief staff to substitute for employees on leave.

46.Counsel for the appellant Mr Kwan Tong Lee stated in his grounds of appeal that the magistrate wrongly applied the Peaceful Elderly Centre Limited case for the following reasons:

(1) In that case, the charge in the summons issued to Peaceful Elderly Centre Limited was breach of the conditions attached to the operating licence. In this case, however, Hong Fook was charged with failing to employ a health worker, and in fact no conditions were attached to the operating licence of Hong Fook, the column for attached conditions was left blank, it meant that there were no attached conditions;

(2) She mixed up the concept of “employment” with the concept of “on duty”;

(3) She failed to give adequate consideration to the fact that being on duty was not the same as working in the home at all times. She also did not rule out the possibility that a health worker sometimes had to take a resident to the hospital and would therefore need to leave the home, as pointed out by Lee Chun Kwok;

(4) In that case, the meaning of “employment” was not expanded to the extent that it must be ensured that there is sufficient manpower on duty in the home at all times. Paragraph 16 only stated that after the operator has employed sufficient staff, he/she still has to arrange for relief staff to substitute for workers on leave, and Mr Lee had already made such an arrangement in this case.

47.In my judgment, the four reasons cited by Mr Kwan are all improper. Although the Peaceful Elderly Centre Limited case concerns the breach of conditions attached to the operating licence, paragraph 16 of the judgment of Deputy Judge Poon cited above involves the interpretation of Schedule 1 to the Residential Care Homes (Elderly Persons) Regulation. That case interpreted “employment” to mean that it must be ensured that the manpower of the staff complied with the requirements, and this is relevant to the present case. The magistrate also had not mixed up the concept of “employment” with the concept of “on duty”. The other arguments of Mr Kwan will be dealt with below.

48.Having carefully examined the provisions of section 11(1) and Schedule 1 to the Residential Care Homes (Elderly Persons) Regulation, I find their wordings support Deputy Judge Poon’s decision in the Peaceful Elderly Centre Limited case. Section 11(1) provides that “the operator of a residential care home shall, according to the particular type of a residential care home, employ a person as—(d) a health worker in the manner indicated in Schedule 1”; whereas Schedule 1 provides that “unless a nurse is present, 1 health worker for every 30 residents or part thereof, between 7 am and 6pm”. I find the word “present” clarifies the scope covered by the word “employment”, which covers not only the need to employ a health worker, but also the need to have at least one health worker present. The provision expressly states that unless a nurse is present, instead of unless a nurse is employed, a health worker shall be (present), instead of a health worker shall be employed. The requirement of being “present” is higher than being “on duty”.

49.At the start of this appeal hearing, I pointed out to counsel on both sides the interpretation mentioned in the preceding paragraph, giving counsel the opportunity to make submissions on that issue.

50.Ms Fan agreed with my interpretation. She submitted that of all the staff listed in Schedule 1, (d) health worker and (e) nurse are important to the health care of the residents, so one of these two types of staff must be present in the home. As Tong did not see either a health worker or a nurse in the home between 9.25 am and 11 am on the day of the offence, the appellant has committed the offence.

51.Mr Kwan argued that the requirement of being “present” in Schedule 1 is the same as being “on duty”. He cited two matters to support his arguments. Firstly, the inspector of the Social Welfare Department Madam Tong gave the following evidence under his cross-examination at the trial:

Magistrate:   He has employed, but that is all you see.

Answer:         Yes, according to the requirements of the Residential Care Homes (Elderly Persons) Regulation, that is the requirements of Schedule 1, as it is a “care and attention home”, there must be staff of different ranks on duty, the ranks are stipulated.

Magistrate: Continue.

Question: And that requirement, that is the requirement of Schedule 1 refers to the four types of people I have mentioned just now?

Answer: Correct.

Question: Yes, of those four types of people, a health worker is an alternative to a nurse.

Answer: Yes.

Question: That is if there is…

Magistrate: Yes.

Question: If there is a nurse, there is no need to have a health worker.

Answer: Correct.

Question: If there is a health worker, there is no need to have a nurse?

Answer: Correct.

(Emphasis by underlining added by me.)

52.Secondly, chapter 10 of the “Code of Practice for Residential Care Homes (Elderly Persons)” (October 2005, Revised Edition) published by the Social Welfare Department deals with health workers. Mr Kwan points out that clause 10.6 (c) provides that the duties of a health worker include “arrangement for treatment by visiting registered medical practitioners or in outpatients clinics, casualties or hospitals”. A health worker is not “present” in the home when he/she goes out to perform those duties, but he /she is still “on duty”, and this fulfills the requirement of Schedule 1. On the day of the offence, Wong Wing Hung went to the Eastern Hospital to discuss the health problems of a resident with Lee between 9.25 and 11 o’clock, so she was on duty even though she was not present in the home. The appellant is therefore not guilty.

53.Tong did use the phrase “on duty” instead of the word “present” in her evidence at the trial, but as can be seen from the closing submission of the prosecutor at the trial, the officer of the Social Welfare Department carrying out the inspection used the phrase “on duty” to refer to working in the home. Thus the fact that Tong mentioned “on duty” in her evidence does not really support Mr Kwan’s arguments. In any event, the understanding of the law of an officer of the Social Welfare Department cannot affect the interpretation of the law that the court should make.

54.Regarding the code of practice, Ms Fan invited me to refer to the English version as follows:

10.6Job Description of Health Worker

A health worker should be responsible for the overall health care of residents living in a residential care home forthe elderly and his/her job duties may include the following:

…

(c) To provide routine checks and record on blood pressure, pulses, temperature, excretion and emotion of residents, for early identification of illnesses and arrangementfor treatment by visiting registered medical practitioners or in outpatients clinics, casualties or hospitals.

(Emphasis added.)

It means that the duties of a health worker include “arrangement for treatment by visiting registered medical practitioners or in outpatients clinics, casualties or hospitals”. Ms Fan pointed out that what the English version meant was that a health worker’s duties included making such arrangements for treatment, it did not mean that a health worker must personally take the residents to clinics, casualties or hospitals for treatment, just the making of such arrangements would suffice.

55.According to Mr Kwan’s submission, as a result of my interpretation of the law stated above, residential care homes will have to employ more staff, which will affect their chances of survival. Even clause 10.6(c) of the code of practice provides that a health worker’s duties include “arrangement for treatment … in outpatients clinics, casualties or hospitals”, so a health worker can be on duty away from the office. In my judgment, all these arguments do not affect my interpretation of the law stated above, which is in very clear terms. My interpretation is not affected by matters such as whether the manpower of the residential care homes needs to be increased, or how the homes should negotiate with the Social Welfare Department with regard to their chances of survival, the scope of duties of health workers or other employees, whether they should be regarded as not present when they have to leave the home while on duty, etc. Nor do I have to answer question (2) referred to in paragraph 42 above.

56.Mr Kwan submits that the magistrate had failed to give adequate consideration to the fact that on duty is not the same as working in the home at all times. Furthermore, the magistrate did not rule out the possibility stated in Lee’s evidence that a health worker sometimes needs to leave the home, for instance, to take a resident to the hospital. In response, Ms Fan submits that the appellant has pointed out that according to clause 10.6(c) of the code of practice, the duties of a health worker include “arrangement for treatment … in outpatients clinics, casualties or hospitals”. Even accepting that it is true, the fact is, according to the evidence, Wong Wing Hung did not leave the home for the purpose of taking a resident to receive treatment at the outpatients clinics, casualties or hospitals, thus she was not performing the duties mentioned in clause 10.6(c) of the code of practice. Furthermore, there is no evidence in this case indicating that something happened in the home that required the health worker to leave the home to deal with the matters.

57.Although the magistrate was wrong in ruling the evidence hearsay, it is an undisputed fact that Wong Wing Hung was indeed not present in the home between 9.25 am and 11 am on the day of the offence. It is Tong’s evidence as well as Lee’s evidence. As a matter of fact, Wong Wing Hung did not leave the home for the purpose of performing the duties mentioned in clause 10.6(c) of the code of practice. Therefore, it has been proved beyond reasonable doubt that the appellant committed the offence as charged. There is nothing unsafe or unsatisfactory about the appellant’s conviction by the magistrate.

Conclusion

58.For the above reasons, I affirm the magistrate’s decision and dismiss the appeal.

Kwan Tong Lee, instructed by Henry Wan & Yeung Solicitors, for the appellant

Irene Fan, Senior Public Prosecutor of the Department of Justice, for the respondent

Translated by the Judgment Translation Unit of the Judiciary and vettedby Mr. P. Y. Lo, Barrister-at-law.