Gammon (Hong Kong) Ltd v Attorney General of Hong Kong [1985] AC 1

Hong Kong building contractors were charged under the Buildings Ordinance after removing lateral support, deviating from approved plans. The Privy Council held the offences were of strict liability, establishing five principles governing when the presumption of mens rea can be displaced by statute.

Facts

Gammon (Hong Kong) Ltd, a registered building contractor, was carrying out works at Marine Lot No. 3, Queen’s Road Central, Hong Kong. The second and third appellants were, respectively, the project manager and site agent employed by the company. Part of the lateral support system on the site, which was required in the interests of safety by plans approved by the building authority, was removed. The removal constituted a ‘deviation of substance’ from the approved plans, and it was assumed for the purposes of the appeal that it was likely to cause a risk of injury or damage.

The company was charged under section 40(2A)(b) of the Buildings Ordinance with a material deviation from an approved plan, and under section 40(2B)(b) with carrying out works in a manner likely to cause risk of injury or damage. The second and third appellants were charged under section 40(2B)(b). Maximum penalties were a fine of $250,000 and three years’ imprisonment.

At the close of the prosecution case, the magistrate ruled that mens rea (or ‘constructive knowledge’) of all essential facts was required, and dismissed the charges because he was not satisfied the appellants knew the removal was a material deviation or likely to cause a risk of injury. The Court of Appeal of Hong Kong reversed, holding the offences were of strict liability. The appellants appealed to the Privy Council.

Issues

The sole issue was whether the offences under sections 40(2A)(b) and 40(2B)(b) of the Buildings Ordinance are offences of strict liability, or whether they require proof of mens rea as to their essential facts, specifically:

• Whether prosecution under section 40(2A)(b) requires proof that the defendant knowingly or intentionally deviated in a material way from approved plans; and
• Whether prosecution under section 40(2B)(b) requires proof that the defendant knowingly or intentionally caused the likelihood of risk of injury or damage.

Arguments

Appellants

The appellants submitted that there was no necessity for strict liability in respect of any of the offences charged. First, strict liability would not promote greater vigilance, because if the persons charged had no knowledge of an essential fact, they could not have done anything to avoid its occurrence. Secondly, strict liability would run counter to the structure and character of the Ordinance, which relied on elaborate provisions for the registration of qualified persons to ensure its requirements were met. They emphasised the severity of the penalties, the wide range of persons potentially liable under section 40(2B) (including unskilled labourers), and that the word ‘permitting’ imports full mens rea (relying on James & Son Ltd v Smee [1955] 1 Q.B. 78). They also relied on two earlier Hong Kong decisions, Attorney-General v Chan Wing On [1964] H.K.L.R. 491 and Chung Yat v The Queen [1978] H.K.L.R. 355, which supported requiring knowledge.

Respondent

The Attorney-General contended that the Ordinance, correctly interpreted, provided sound reason for holding the offences to be of strict liability. It was submitted that if the offence required knowledge of the materiality of the deviation, the defendant would be ‘virtually judge in his own cause’, undermining the effectiveness of the legislation aimed at public safety.

Judgment

The Privy Council (advice delivered by Lord Scarman) dismissed the appeal, holding that both offences are of strict liability to the extent indicated.

The General Law

Lord Scarman reviewed Sherras v De Rutzen [1895] 1 Q.B. 918, Lim Chin Aik v The Queen [1963] A.C. 160, and Sweet v Parsley [1970] A.C. 132. He then set out five propositions summarising the law:

1. There is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence;
2. The presumption is particularly strong where the offence is ‘truly criminal’ in character;
3. The presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute;
4. The only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern, and public safety is such an issue;
5. Even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act.

Application to the Ordinance

The Board held that the overall purpose of the Ordinance is to regulate the planning, design and construction of building works in the interests of safety, covering an area of potential danger to public safety, particularly in Hong Kong, and involving an activity in which citizens have a choice as to whether they participate. This brought it within Lord Diplock’s formulation in Sweet v Parsley.

The Board accepted the Court of Appeal’s reasoning, quoting its observation:

Any large scale building operation will almost inevitably produce circumstances in which a departure from the generally accepted standards (whether of work or materials) will be likely to cause danger. Indeed, the extent of the danger and of the damage which may be done will frequently be enormous. It therefore behoves the incompetent to stay away and the competent to conduct themselves with proper care.

The Board rejected the appellants’ submission that strict liability would not promote vigilance, being satisfied it would do so with respect to both offences. The severity of the maximum penalties was not inconsistent with strict liability; rather, severity operated as a significant deterrent given the risks to public safety.

Section 40(2A)(b)

This provision applies to those bearing responsibility for the decision to undertake works and for their supervision. While knowledge of the approved plan and the fact of deviation was required, requiring proof of knowledge of the materiality of the deviation would make the defendant ‘virtually judge in his own cause’ and seriously weaken the Ordinance.

Section 40(2B)(b)

The provision also imposes strict liability regarding the likelihood of risk. The word ‘permitting’ does not import full mens rea in the sense of intention or knowledge that a risk of injury would result, but requires that the defendant had power to control whether the actus reus occurred. The purpose is to prevent those with the power of decision from choosing a manner of carrying out works likely to cause risk. The wording of section 40(2B)(a), which points to strict liability once injury has occurred, supports this construction.

The earlier Hong Kong cases of Chan Wing On and Chung Yat, to the extent they pointed to a different conclusion, were held to be overruled.

Implications

The decision is significant for its clear five-point restatement of the principles governing when the presumption of mens rea in statutory offences can be displaced. The Board affirmed that the presumption is strong, particularly for truly criminal offences, and can be displaced only where the statute concerns an issue of social concern such as public safety, and where the imposition of strict liability will genuinely promote greater vigilance.

For those involved in building and construction, particularly in jurisdictions with similar regulatory regimes, the decision confirms that responsibility for compliance rests on persons with supervisory or decision-making authority, who cannot escape liability by pleading ignorance of the materiality of deviations or the likelihood of risk. Delegation to agents does not relieve principals of responsibility.

The limits of the decision should be noted: the Board was careful to observe that liability under section 40(2B) requires proof that the defendant bore (or shared) responsibility for deciding the manner in which the works were carried out, so an unskilled labourer without such control would not necessarily be caught. Full trial of the outstanding factual issues was remitted to the magistrate.

In the broader legal context, Gammon has become a leading authority on strict liability in regulatory offences, particularly for its structured articulation of the balance between the presumption of mens rea and the need to protect the public through effective regulation of activities involving danger to public health or safety.

Verdict: Appeal dismissed. The offences under sections 40(2A)(b) and 40(2B)(b) of the Buildings Ordinance were held to be offences of strict liability. The order of the Court of Appeal remitting the case to the magistrate stood, with the appellants ordered to pay the respondent’s costs in the Court of Appeal and before the Board.

Source: Gammon (Hong Kong) Ltd v Attorney General of Hong Kong [1985] AC 1