HKSAR v. KIT CHOY DEVELOPMENT LTD

HKSAR v. KIT CHOY DEVELOPMENT LTD

The Court held that under the statutory scheme of Cap.502 the offence under s5(7)(b) is constituted by failure to comply with a Fire Safety Improvement Direction and that the statute contemplates limited, specified reasonable excuses (s5(8)) rather than a general public law challenge to the Director's exercise of discretion; consequently, and having regard to binding authority (McMahon J approved by the Court of Final Appeal), the reasonableness of the Director's decision is not a defence available in the magistrates' criminal trial and the appeal against conviction must be dismissed.

Citation
HKSAR v. KIT CHOY DEVELOPMENT LTD
Parties
Appellant: KIT CHOY DEVELOPMENT LIMITED; Respondent: HKSAR
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
7 December 2005
Case Number
HCMA62/2005
Procedural Posture
Magistracy Appeal No.62 of 2005 (appellate Jurisdiction) / Appeal From Conviction in Magistrates' Court to Court of First Instance
Outcome
Appeal dismissed; conviction and sentence upheld
Legal Topics
Failure to Comply With Administrative Direction, Ultra Vires Challenge, Reasonable Excuse Defence, Strict Liability Offences, Admissibility of Public Law Defences in Criminal Proceedings
Source Language
EN
Criminal Law Administrative Law Public Law Regulatory Enforcement Fire Safety Law Failure to Comply With Administrative Direction Ultra Vires Challenge Reasonable Excuse Defence +2 more

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Parties

KIT CHOY DEVELOPMENT LIMITED

Appellant

HKSAR

Respondent

Procedural Posture

Magistracy Appeal No.62 of 2005 (appellate Jurisdiction) / Appeal From Conviction in Magistrates' Court to Court of First Instance

Legal Issues

  1. 1 Whether a defendant charged under s5(7)(b) of Cap.502 may challenge the validity or reasonableness of a Fire Safety Improvement Direction as a defence in a criminal trial
  2. 2 Whether the magistrate exhibited bias in the trial
  3. 3 How to construe s5(7)(b) and s5(8) of the Fire Safety (Commercial Premises) Ordinance Cap.502 and whether the statutory scheme contemplates public law challenges in criminal proceedings

Ratio Decidendi

The Court held that under the statutory scheme of Cap.502 the offence under s5(7)(b) is constituted by failure to comply with a Fire Safety Improvement Direction and that the statute contemplates limited, specified reasonable excuses (s5(8)) rather than a general public law challenge to the Director's exercise of discretion; consequently, and having regard to binding authority (McMahon J approved by the Court of Final Appeal), the reasonableness of the Director's decision is not a defence available in the magistrates' criminal trial and the appeal against conviction must be dismissed.

Court Disposition

Appeal dismissed; conviction and sentence upheld

Orders

  • Appeal dismissed
  • Conviction and fine of HKD 2,800 upheld