In the recent appeal case of HKSAR v Kwan On Construction Co. Ltd. (HCMA 358/2018), the Court of First Instance examined the duties of an appointed contractor of a construction site to avoid mosquito breeding.
Section 27(3) of the Public Health and Municipal Services Ordinance, Cap 132, 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 offence, upon conviction, carries a maximum fine of HK$25,000 and a daily fine of HK$450.
Kwan On Construction Co. Ltd. (the Company) was the appointed contractor of a construction site. The Magistrate convicted the Company of contravening s.27(3) of the Public Health and Municipal Services Ordinance on the ground that mosquito larvae were found in the water accumulated in a sunken part of a water-filled barrier. Although the Company had covered the sunken part of the water-filled barrier with adhesive tapes to prevent the accumulation of water, the adhesive tapes were found to be damaged. The Magistrate held that the offence under s.27(3) was one of absolute liability and that the common law defence was not available. The Magistrate also said that, even if a common law defence was available, the evidence adduced by the Company was inadequate to show that its site foremen had carried out inspections for the purposes of establishing an “honest and reasonable belief”, which is an exculpatory defence against charges made under s.27(3).
The Company appealed against the conviction on the grounds that the Magistrate had erred in construing the s.27(3) offence as one of absolute liability and in refusing to allow the Company to rely on the common law defence. The Court of First Instance accepted the Company’s grounds of appeal and clarified that the offence created by s.27(3) was one of strict liability. Accordingly, although there is no statutory defence, the common law defence of “honest and reasonable belief” is available. The Court of First Instance also expounded that the onus was on the Company to prove, on the balance of probabilities, that the Company honestly and reasonably believed that there were no larvae or pupae of mosquitoes on the construction site.
In reassessing whether the Company had satisfied the common law defence, the Court of First Instance took into consideration the Magistrate’s acceptance of the evidence given by the Company’s witness that there was a system in place to prevent mosquito breeding, including regular mosquito preventative training for workers, regular check-ups on the adhesive tapes applied on the sunken parts of the water-filled barriers, and weekly site inspections by foremen and site supervisors. Also, photographs taken on the site showed that adhesive tapes were in fact applied on various sunken parts of the water-filled barriers. In this regard, the problem of mosquito breeding was seemingly mild because mosquito larvae were found only at one location. In addition, the Court of First Instance noted that the law only required an appointed contractor to implement all reasonable measures to prevent mosquito breeding, and the system implemented by the Company complied with the guidelines recommended by the Food and Environmental Hygiene Department. In light of this, the Court of First Instance held that the Company had succeeded in establishing the common law defence and the conviction was therefore quashed.
This judgment confirms that the offence under s.27(3) is one of strict liability, and an appointed contractor can rely on the common law defence that it honestly and, upon reasonable grounds, believes that under no circumstances will larvae or pupae of mosquito exist on the construction site. It is therefore prudent that appointed contractors take proactive steps to implement effective systems on their construction sites to prevent the accumulation of water and mosquito breeding. In order to discharge their statutory duties in this respect, appointed contractors are also recommended to critically review the guidelines and updates made available by the Food and Environmental Hygiene Department from time to time to ensure compliance.
About the author of this article
The author of this article, Mr. Stanley Lo, was the General Counsel of Kwan On Holdings Limited (the parent company of Kwan On Construction Co. Ltd.) when this appeal case was heard. Mr. Lo subsequently joined Deacons’ Construction Practice as a Consultant on 1 April 2019.