Gammon (Hong Kong) Ltd v Attorney General of Hong Kong; Yee Chin Teo v Attorney General of Hong Kong; Chak Shing Mak v Attorney General of Hong Kong

JurisdictionUK Non-devolved
Judgment Date1984
Date1984
Year1984
CourtPrivy Council
[PRIVY COUNCIL] GAMMON (HONG KONG) LTD FIRST APPELLANT YEE CHIN TEO SECOND APPELLANT CHAK SHING MAK THIRD APPELLANT AND ATTORNEY-GENERAL OF HONG KONG RESPONDENT [APPEAL FROM THE COURT OF APPEAL OF HONG KONG] 1984 Feb. 28, 29; March 1, 5; May 8 Lord Fraser of Tullybelton, Lord Scarman, Lord Bridge of Harwich and Lord Brightman

Crime - Mens rea - Statutory offence - Building works - Deviation from approved plans - Likelihood of causing risk of injury or damage - Whether offences of strict liability - Buildings Ordinance (Laws of Hong Kong, 1981 rev., c. 123), s. 40(2A)(b) (2B)(b)

Section 40 of the Buildings ordinance provides:

“(2A) … any … registered contractor … directly concerned with [building works] who … (b) diverges or deviates in any material way from any work shown in a plan approved by the building authority under this Ordinance … shall be guilty of an offence and shall be liable on conviction to a fine … and to imprisonment …. (2B) Any person … directly concerned with any [building works] who … (b) carries out or … permits … such works to be carried out, in such manner as is likely to cause a risk of injury to any person or damage to any property, shall be guilty of an offence and shall be liable on conviction to a fine … and to imprisonment …”

The first appellant company was the registered contractor under the Building Ordinance carrying out building works on a site in Hong Kong. The second appellant was the project manager employed by the company and the third appellant was its site agent, and the company had delegated to them the fulfilment of its obligations under the Ordinance. A temporary lateral support system was erected as required in the interests of safety by plans approved by the building authority. Part of the lateral support system was subsequently removed, which was a substantial deviation from the plans and was likely to cause a risk of injury or damage. The company was charged with deviating in a material way from approved plans contrary to section 40(2A)(b) of the Ordinance, and with carrying out the works in a manner likely to cause risk of injury or damage contrary to section 40(2B)(b). The second appellant was charged with carrying out the works, and the third appellant with permitting the works to be carried out, in a manner likely to cause risk of injury or damage contrary to section 40(2B)(b). At the end of the prosecution case the magistrate ruled that actual or constructive knowledge was necessary of all the facts that constituted the ingredients of the offences charged. He dismissed the charges against all three appellants holding that the requisite knowledge had not been proved. On appeal by the Attorney-General the Court of Appeal of Hong Kong, allowing the appeal and remitting the case to the magistrate, held that it was not necessary for the prosecution, under section 40(2A)(b) to prove that a defendant knowingly or intentionally deviated in a material way from the approved plans or, under section 40(2B)(b), that a defendant knowingly or intentionally caused the risk of injury or damage.

On the appellants' appeal to the Judicial Committee: —

Held, dismissing the appeal, that the presumption that mens rea was an essential ingredient of a statutory offence could be displaced by clear and by necessary implication where the statute creating the offence dealt with an issue of social concern, including public safety, provided that strict liability would be effective to promote the objects of the statute; that, since greater vigilance would be promoted if knowledge of the materiality of the deviation from the plan was not a necessary ingredient of the offence, subsection (2A)(b) was to be construed as requiring knowledge of the deviation from the plan but imposing strict liability for the deviation being a material one; that similarly, provided the appellants had knowledge of the manner in which the works were carried out, they had committed an offence under subsection (2B)(b) even if they did not know that there was a resulting risk of injury or damage; and that, accordingly, to that extent the offences charged were of strict liability, and the case would be remitted to the magistrate for determination (post, pp. 443B–C, H, 444H–445A, 446F–G, H, 447B–D, G–H, H–448B).

Sherras v. De Rutzen [1895] 1 Q.B. 918, D.C.; Lim Chin Aik v. The Queen [1963] A.C. 160, P.C. and Sweet v. Parsley [1970] A.C. 132, H.L.(E.) applied.

Attorney-General v. Chan Wing On [1964] H.K.L.R. 491 and Chung Yat v. The Queen [1978] H.K.L.R. 355 overruled. Decision of the Court of Appeal of Hong Kong affirmed.

The following cases are referred to in the judgment of their Lordships:

Attorney-General v. Chan Wing On [1964] H.K.L.R. 491

Chung Yat v. The Queen [1978] H.K.L.R. 355

James & Son Ltd. v. Smee [1955] 1 Q.B. 78; [1954] 3 W.L.R. 631; [1954] 3 All E.R. 273, D.C.

Lim Chin Aik v. The Queen [1963] A.C. 160; [1963] 2 W.L.R. 42; [1963] 1 All E.R. 223, P.C.

Sherras v. De Rutzen [1895] 1 Q.B. 918, D.C.

Sweet v. Parsley [1970] A.C. 132; [1969] 2 W.L.R. 470; [1969] 1 All E.R. 347, H.L.(E.)

The following additional cases were cited in argument:

Alphacell Ltd. v. Woodward [1972] A.C. 824; [1972] 2 W.L.R. 1320; [1972] 2 All E.R. 475, H.L.(E.)

Grays Haulage Co. Ltd. v. Arnold [1966] 1 W.L.R. 534; [1966] 1 All E.R. 896, D.C.

McLeod (or Houston) v. Buchanan [1940] 2 All E.R. 179, H.L.(E.)

Reg. v. Caldwell [1982] A.C. 341; [1981] 2 W.L.R. 509; [1981] 1 All E.R. 961, H.L.(E.)

Reg. v. Halim Sulman [1977] H.K.L.R. 214

Reg. v. St. Margaret's Trust Ltd. [1958] 1 W.L.R. 522; [1958] 2 All E.R. 289, C.C.A.

Reg. v. Warner [1969] 2 A.C. 256; [1968] 2 W.L.R. 1303; [1968] 2 All E.R. 356, H.L.(E.)

Tesco Supermarkets Ltd. v. Nattrass [1972] A.C. 153; [1971] 2 W.L.R. 1166; [1971] 2 All E.R. 127, H.L.(E.)

APPEAL (No. 32 of 1983) by Gammon (Hong Kong) Ltd., Yee Chin Teo and Chak Shing Mak (the first, second and third appellants), with special leave, from a judgment of the Court of Appeal of Hong Kong (Huggins V.-P., Yang and Barker JJ.A.) dated 11 February 1983, whereby the court allowed the appeal of the Attorney-General of Hong Kong by way of case stated from the dismissal on 14 May 1982 in the Hong Kong Magistrates' Court (Mr. S. A. M. Clay) of the charges against the appellants of offences contrary to section 40(2A)(b) and (2B)(b) of the Buildings Ordinance. The Court of Appeal remitted the case to the magistrate.

The facts are stated in the judgment of their Lordships.

Robert Alexander Q.C., John Mathew Q.C. and Anthony Hooper for the appellants.

Max Lucas Q.C., Director of Public Prosecutions, Hong Kong, Warwick Reid, Deputy Director of Public Prosecutions, Hong Kong, and David Fitzpatrick, Crown Counsel, Hong Kong, for the Attorney-General of Hong Kong.

Cur. adv. vult.

8 May. The judgment of their Lordships was delivered by LORD SCARMAN.

This appeal is from a judgment of the Court of Appeal of Hong Kong allowing the appeal of the Attorney-General from the decision of the magistrate, whereby he dismissed charges brought against the three appellants in respect of alleged contraventions of the Building Ordinance (Laws of Hong Kong, 1981 rev.). The issue in the appeal is whether the offences charged are offences of strict liability or require proof of mens rea as to their essential facts.

The first appellant, Gammon (Hong Kong) Ltd., (“the company”) is a contractor registered under the Ordinance and was carrying out building works at a site known as Marine Lot No. 3 Queen's Road Central, Hong Kong. The second and third appellants were employees of the company, being respectively the project manager and site agent for the works.

The appellants were charged under subsections (2A) and (2B) of section 40 of the Ordinance. It is necessary to set out in full the two subsections:

“(2A) Any person for whom any building works, street works, lift works or escalator works are being carried out and any authorised person, registered structural engineer, registered contractor, registered lift contractor or registered escalator contractor directly concerned with any such works who — (a) permits or authorises to be incorporated in or used in the carrying out of any such works any materials which — (i) are defective or do not comply with the provisions of this Ordinance; (ii) have not been mixed, prepared, applied, used, erected, constructed, placed or fixed in the manner required for such materials under this Ordinance; (b) diverges or deviates in any material way from any work shown in a plan approved by the Building Authority under this Ordinance; or (c) knowingly misrepresents a material fact in any plan, certificate, form or notice given to the Building Authority under this Ordinance, shall be guilty of an offence and shall be liable on conviction to a fine of $250,000 and to imprisonment for three years. (2B) Any person (whether or not an authorised person, a registered structural engineer or a registered contractor) directly concerned with any site formation works, piling works, foundation works or other form of building works who — (a) carries out or has carried out such works, or authorises or permits or has authorised or permitted such works to be carried out, in such manner that it causes injury to any person or damage to any property; or (b) carries out or has carried out such works, or authorises or permits or has authorised or permitted such works to be carried out, in such manner as is likely to cause a risk of injury to any person or damage to any property, shall be guilty of an offence and shall be liable on conviction to a fine of $250,000 and to imprisonment for three years.”

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