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The Attorney General v China State Construction Engineering Corporation

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
Judgment Date16 October 1995
Year1995
Judgement NumberHCMA732/1995
Subject MatterMagistracy Appeal
CourtHigh Court (Hong Kong)
HCMA000732/1995 THE ATTORNEY GENERAL v. CHINA STATE CONSTRUCTION ENGINEERING CORPORATION

HCMA000732/1995

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.732 OF 1995

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BETWEEN
THE ATTORNEY GENERAL Appellant
and
CHINA STATE CONSTRUCTION ENGINEERING CORPORATION Respondent

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Coram: Hon. Gall, J. in Court

Date of Hearing: 14th September 1995

Date of handing down Judgment: 16th October 1995

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JUDGMENT

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1. This appeal is by way of a case stated from a magistrate.

2. The Respondent herein was prosecuted before the magistrate for an offence contrary to Section 38A of the Immigration Ord. Cap. 115. Section 38A is couched in these terms:

"38A. Site controller commits offence if illegal immigrant on construction site

(1) In this section-

"construction site" means a place where construction work is undertaken and includes any area in the immediate vicinity which is used for the storage of materials or plant used or intended to be used for the purpose of the construction work;
"construction site controller" means a principal or main contractor and includes a subcontractor, owner, occupier or other person who has control over or is in charge of a construction site;
"construction work" has the same meaning as in the Factories and Industrial Undertakings Ordinance (Cap. 59) but does not include redecoration, renovation, alteration, maintenance or repair of domestic premises by-
(a) an occupier of the premises; or
(b) an owner of the premises if that is the only premises owned by him in the building which contains the premises;
"domestic premises" means premises used or intended to be used solely or principally for residential purposes and constituting a separate household unit.
(2) Where it is proved that a person to whom section 38(1) applies was on a construction site, the construction site controller of that construction site commits an offence and is liable to a fine of $250000.
(3) It is a defence in proceedings for an offence under this section for the person charged to prove that he took all practicable steps to prevent persons to whom section 38(1) applies from being on the construction site."

Section 38 (1) of the Ord. states:

(1) Subject to subsection (2), a person who-
(a) being a person who by virtue of section 7 may not land in Hong Kong without the permission of an immigration officer or immigration assistant, lands in Hong Kong without such permission; or
(b) having landed in Hong Kong unlawfully, remains in Hong Kong without the authority of the Director, shall be guilty of an offence and shall be liable on conviction to a fine of $10000 and to imprisonment for 3 years.

3. The offence alleged was that on the 30th of November 1993 the respondent was the site controller of a construction site at Block E and F of Phase II of the Yiu Tung Estate, She Kei Wan, when an illegal immigrant as defined by Section 38 (1) of the Ord. was found there. Having heard argument from counsel on a preliminary point the magistrate ruled that section 38A had been repealed by the Bill of Rights Ord. I do not propose to set out the provisions of the Bill of rights Ord. pursuant to which the magistrate ruled that the Section had been repealed save to say that by Section 3(2) of that Ord. all pre-existing legislation that did not admit of a construction consistent with the Bill of Rights Ord. was to the extent of that inconsistency repealed.

4. The reasons given by the learned magistrate for his decision were these:

"(a) When assessing if a provision is consistent with the Bill a court must first decide what are the essential ingredients of an offence.
(b) In deciding what are the essential ingredients of an offence what is decisive is the substance and reality of the language creating the offence rather than its form.
(c) There must be flexibility in deciding whether a provision is inconsistent with the Bill to allow a balance to be drawn between the interests of the person charged and the interests of the state.
(d) Exceptions to the principle that the prosecution has to prove the guilt of a defendant beyond reasonable doubt can be justified when it remains primarily the responsibility of the prosecution to prove the guilt of the accused to the required standard and if the exception is reasonably imposed.
(e) The less significant the departure from that principle, the simpler it will be to justify that exception; provided the prosecution retains responsibility for proving the essential ingredients of the offence, the less likely it is that an exception will be regarded as unacceptable.
(f) If an exception requires certain matters to be presumed until the contrary is shown, then it is difficult to justify that presumption unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend."

5. The magistrate went on to find that no distinction should be made as to whether or not the offence was either one of strict liability with a due diligence or special defence or an offence containing a presumption but that a court should look at " the substance and reality of the language creating an offence rather than its form." He made no finding as to whether Section 38A of the Immigration Ord. is an offence of strict liability.

6. In Gammon (Hong Kong) v Attorney General 1985 AC 1 Scarman LJ said at page 16:

"Whether, therefore, a particular provision of the statute creates an offence of full mens rea or of strict liability must...

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