Hksar v Cho Ting Kai (曹挺楷) And Others

Judgment Date05 November 2021
Neutral Citation[2021] HKCFA 39
Year2021
Judgement NumberFAMC27/2021
Subject MatterMiscellaneous Proceedings (Criminal)
CourtCourt of Final Appeal (Hong Kong)
FAMC27/2021 HKSAR v. CHO TING KAI (曹挺楷) AND OTHERS

FAMC No. 27 of 2021

[2021] HKCFA 39

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 27 OF 2021 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 209 OF 2019)

___________________________

BETWEEN
HKSAR Respondent
and
TSO TING KAI (曹挺楷) (D1) 1st Applicant
WONG WAI PANG (黃偉鵬) (D2) 2nd Applicant
CHEUNG PAK LUN (張柏倫) (D3) 3rd Applicant

___________________________

Appeal Committee: Mr Justice Fok PJ, Mr Justice Lam PJ and Mr Justice Chan NPJ

Date of Hearing and Determination: 1 November 2021

Date of Reasons for Determination: 5 November 2021

________________________________

REASONS FOR DETERMINATION

________________________________

Mr Justice Fok PJ:

1. At the hearing, after hearing counsel for the applicants, we dismissed this application for leave to appeal to the Court of Final Appeal, indicating that we would provide our reasons in due course. These are those reasons.

2. The three applicants were each convicted, after trial, of the offence of failing to comply with a requirement made by an occupational safety officer, contrary to sections 4(1)(e) and 10(3)(a) of the Factories and Industrial Undertakings Ordinance (Cap.59) (“the Ordinance”).[1]

3. So far as material, these sections provide respectively:

4. Powers of officers

(1) An occupational safety officer may exercise the following powers –

(e) to examine, either alone or in the presence of any other person, as he thinks fit, respecting matters under this Ordinance, any person whom he finds in any industrial undertaking, or whom he has reasonable cause to believe has been within the preceding 2 months employed in any industrial undertaking, or require any such person to be so examined and to sign a declaration of the truth of the matters respecting which he has been so examined; …”

10. Offences and penalties

(3) Any person who –

(a) fails to comply with a requirement made by any officer under section 4(1); or

(b) wilfully or recklessly gives false information or withholds information as to any of the matters in respect of which information is required to be given under section 4(1); or

(c) obstructs or delays any officer in the exercise of any of the powers conferred upon him by section 4,

shall be guilty of an offence and shall be liable to a fine at level 5.”

4. The applicants’ prosecution arose out of a fatal industrial accident on a construction site at Tung Chung, of which their employer, Able Engineering Company Limited, was the main contractor. After the accident, Mr Lee Chi Ming, an occupational safety officer, who testified at trial as PW1, issued letters to each of the three applicants requiring them to attend examinations by PW1 to provide information about the accident and sign a declaration of truth to verify any information provided. The applicants did not attend their examinations. Instead, they sought a series of postponements until eventually they were prosecuted.

5. At trial, [2] the magistrate: (1) found that the three applicants did not attend any of the scheduled examinations; (2) accepted that the parties’ joint submission that the requirement of mens rea for the offence had been displaced and the offence was to be regarded as falling within the second alternative in Kulemesin v HKSAR (2013) 16 HKCFAR 195 was correct; and (3) found that the three applicants could not have had an honest and reasonable belief that the Labour Department would allow the indefinite postponement of their examinations.

6. On appeal,[3] the applicants resiled from the position adopted at trial and contended that the magistrate was wrong to hold that the presumption of mens rea for the offence had been displaced. The deputy judge rejected this ground of appeal. He also rejected the other grounds of appeal advanced by the applicants and dismissed their appeals against conviction.

7. The applicants sought certification from the judge of a point of law.[4] The deputy judge refused to grant the same as he was not satisfied the point of law sought to be raised was of great and general importance or that it was reasonably arguable.

8. Before us, the applicants sought to renew their application for leave to appeal on the basis that the appeal involves a point of law of the sufficient importance to justify the grant of leave to appeal, namely:

“In proving an offence under Section 4(1)(e) and 10(3)(a) of the Factories and Industrial Undertakings Ordinance, Cap.59 (‘the Offence’), does the Prosecution need to prove mens rea on the part of the Accused.”

9. Whilst this is a question of law of general application, since it relates to a statutory offence generally applicable, we were not satisfied that the question is one which satisfies the threshold for the grant of leave to appeal to the Court of Final Appeal.

10. The question of whether, in respect of any statutory offence, mens rea has been displaced is one of construction...

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