13 November 2020
In a previous article, we looked at whether a contractor has a defence when charged with an offence under section 27(3) of the Public Health and Municipal Services Ordinance, Cap 132 (PHMSO), which section provides that “If any larvae or pupae of mosquitoes are found on any premises consisting of a building site of which there is the appointed contractor, the appointed contractor of the site shall be guilty of an offence.” The judgment examined in that article, confirmed that the offence under s.27(3) is one of strict liability, but that an appointed contractor can rely on the common law defence that it honestly and upon reasonable grounds believed that under no circumstances would larvae or pupae of mosquito exist on the construction site. This article looks at a recent case, HKSAR v Able Engineering Company Ltd, HCMA 597/2019, in which an appointed contractor was convicted by the Magistrates’ Court of the offence under s.27(3). The contractor successfully appealed and the conviction quashed because the Court held that there was no evidence of negligence on the contractor’s part and the common law defence was therefore available to it. The Court found that the evidence before the Magistrate was that the contractor had put in place on the site a detailed, ongoing compliance structure and a system that specifically addressed the issue of the risk of mosquito breeding and water controls.
Conviction under sections 27(3) and 150 of the Public Health and Municipal Services Ordinance, Cap 132
The contractor was convicted, after a trial at the Magistrates’ Court, of an offence under sections 27(3) and 150 of PHMSO and fined HK$5000. The core issue at trial had been whether the contractor had made out the common law defence of honest and mistaken belief upon reasonable grounds. Its defence was that the measures in place on the site to control mosquito breeding, exceeded those in the Food and Environmental Hygiene Department (FEHD) Anti-mosquito Weekly Inspection Programme and that its anti-mosquito control system was duly followed, through its employees, both at the frontline and management level and that all steps taken were sufficient to establish the common law defence.
The Magistrate had found that the presence of larvae at the site must have been due to the negligence or omission on the part of the contractor’s employee(s), for failing to prevent water accumulating. He found that the contractor had failed to (i) prevent water from accumulating and to remove stagnant water in the open channel after a number of days of heavy rain; and (ii) cover or erect a structure over the open channel to prevent water from accumulating. The Magistrate concluded that a contractor could not avail itself of the common law defence, where the prohibited circumstances were the result of negligent acts or omissions of persons to whom a contractor has entrusted the task of ensuring that the law is complied with.
Appeal
The contractor appealed on the grounds that the Magistrate had erred in:
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finding negligence on the part of unspecified “employee or employees” of the contractor, when no negligence had been proven in evidence, specified at trial or demonstrated on the part of any “employee or employees” (negligence ground);
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finding that it was possible to erect a structure/cover over a channel where sampling took place in order to “improve the situation” and the contractor had failed to do so. No evidence of such a possibility existed in the Prosecution’s case and this concept had not been explored or ventilated at any stage of the trial (the failure to cover the channel ground); and
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not finding that the contractor had satisfied the common law defence (the common law defence ground).
Negligence ground
The FEHD’s publication “Anti-mosquito Weekly Inspection Programme” stated that mosquito eggs develop into adults in seven days and inspections should be undertaken weekly and so it was this 7-day life cycle that needed to be broken in order for effective preventative measures. The contractor had allowed the water to accumulate for 3 days (from Saturday to Monday) and its evidence was that the delay in removing the accumulated water was due partly to heavy rain and partly to having no staff present over the weekend to undertake the removal task. The contractor’s evidence, which the Magistrate did not reject, was that there was a bi-weekly inspection with officers from the Housing Authority (HA) every Tuesday and Thursday to ensure there was no garbage or accumulation of water for breeding of mosquitos. In addition, the contractor conducted its own inspection every Monday, Wednesday and Friday to ensure that anti-mosquito works were properly carried out before the HA inspection. For the prevention of mosquitos, there were different types of equipment and supplies maintained at the site, such as fogging, larvicidal spray, mosquito sand, mosquito cake and a LPG mosquito killing machine.
Apart from the above, other mosquito control measures included delivering Toolbox training to the contractor’s employees and sub-contractors responsible for executing anti-mosquito works and measures; posting relevant notices and work records at the site; and attending frequent and regular meetings on environmental issues with the site agents, site managers, sub-contractors, project managers and directors. Daily inspections were carried out at the site with the assistance of other workers to ensure that there was no accumulated water or rubbish. Anti-mosquito supplies had been used regularly.
The Court held that on the evidence before the Magistrate, the fact that the contractor had not cleared the water for 3 days did not establish that it was negligent through its employee(s).
Failure to cover the channel ground
The Court accepted the contractors’ contention that whether erecting a structure or covering the channel would have improved the situation had not been explored at trial and the contractor had not been given an opportunity to address this issue. Moreover, there was no evidence as to whether this measures would have been effective. The possibility of what could have been done was speculation, the Court said, and not properly grounded on a clear finding of primary facts. The Magistrate was therefore wrong to conclude that the presence of larvae at the site must have been due to the negligence on the part of the contractor’s employees because the extra measure of covering was not taken.
Common law defence
The Court said that the Magistrate had correctly referred to the offence being one of strict liability and to the common law defence. The Court said that the Magistrate had referred in the Statement of Findings to HKSAR v Kier Hong Kong Limited, where the court had held that the common law defence was not available where the prohibited circumstances are the result of the negligent acts or omissions of a person(s) to whom a defendant had entrusted the task of ensuring that the law is complied with. The Magistrate had found that the presence of larvae at the site must have been due to the negligence or omission on the part of the contractors’ employee(s) for failing to prevent water accumulating. As a result, he found the common law defence was not available to the contractor. The Court held that, as there was no evidence of the contractor’s negligence, the common law defence was available to it. It said that the evidence before the Magistrate was that the contractor had put in place on the site a detailed, ongoing compliance structure and system specifically addressing the issue of risk of mosquito breeding and water controls.
The contractor’s case was that it was of the belief that a control system was in place and being conducted, manned and equipped in a manner totally consistent with the Government’s recommended practices, and in fact, exceeded such. In support of this the contractor referred to the admitted facts between itself and the Prosecution that the FEHD had visited the site 40 times between May 2017 and July 2018 and none of these visits had resulted in any prosecution. The Court held that there was unchallenged evidence that the contractor held such honest belief for good reason that the anti-mosquito breeding water control measures were being implemented and the Government published recommendations were being complied with and exceeded. The Magistrate had not rejected the contractor’s belief and there was no evidence that the reasons for forming such belief were in anyway flawed or inadequate.
For further information, please contact:
Stanley Lo, Deacons
stanley.lo@deacons.com.hk
