[1985] 1

A.C.

[PRIVY COUNCIL]

GAMMON (HONG KONG) LTD. FIRST APPELLANT

YEE CHIN TEO SECOND APPELLANT

CHAK SHING MAK THIRD APPELLANT

AND
ATTORNEY-GENERAL OF HONG KONG RESPONDENT

[APPEAL FROM THE COURT OF APPEAL OF HONG KONG]

1984 Feb. 28, 29; March 1, 5; May 8 Lord Fraser of Tullybelton, Lord Scarman, Lord
Bridge of Harwich and Lord Brightman

Crime - Mens rea - Statutory offence - Building works - Deviation from approved plans - Likelihood of
causing risk of injury or damage - Whether offences of strict liability - Buildings Ordinance (Laws of
Hong Kong, 1981 rev., c. 123), s. 40(2A)(b) (2B)(b)

Section 40 of the Buildings Ordinance provides:

"(2A) ... any ... registered contractor ... directly concerned with [building works] who ... (b) diverges
or deviates in any material way from any work shown in a plan approved by the building authority
under this Ordinance ... shall be guilty of an offence and shall be liable on conviction to a fine ... and to
imprisonment. ... (2B) Any person ... directly concerned with any [building works] who ... (b) carries out
or ... permits ... such
[1985] 2
A.C. Gammon Ltd. v. A.-G. of Hong Kong (P.C.)

works to be carried out, in such manner as is likely to cause a risk of injury to any person or damage to any
property, shall be guilty of an offence and shall be liable on conviction to a fine ... and to imprisonment ..."

The first appellant company was the registered contractor under the Buildings Ordinance carrying out
building works on a site in Hong Kong. The second appellant was the project manager employed by the
company and the third appellant was its site agent, and the company had delegated to them the fulfilment of its
obligations under the Ordinance. A temporary lateral support system was erected as required in the interests
of safety by plans approved by the building authority. Part of the lateral support system was subsequently
removed, which was a substantial deviation from the plans and was likely to cause a risk of injury or damage.
The company was charged with deviating in a material way from approved plans contrary to section 40(2A)(b)
of the Ordinance, and with carrying out the works in a manner likely to cause risk of injury or damage contrary
to section 40(2B)(b). The second appellant was charged with carrying out the works, and the third appellant
with permitting the works to be carried out, in a manner likely to cause risk of injury or damage contrary
to section 40(2B)(b). At the end of the prosecution case the magistrate ruled that actual or constructive
knowledge was necessary of all the facts that constituted the ingredients of the offences charged. He dismissed
the charges against all three appellants holding that the requisite knowledge had not been proved. On appeal
by the Attorney-General the Court of Appeal of Hong Kong, allowing the appeal and remitting the case to the
magistrate, held that it was not necessary for the prosecution, under section 40(2A)(b) to prove that a defendant
knowingly or intentionally deviated in a material way from the approved plans or, under section 40(2B)(b),
that a defendant knowingly or intentionally caused the risk of injury or damage.
On the appellants' appeal to the Judicial Committee:-
Held, dismissing the appeal, that the presumption that mens rea was an essential ingredient of a statutory
offence could be displaced by clear and by necessary implication where the statute creating the offence
dealt with an issue of social concern, including public safety, provided that strict liability would be effective
to promote the objects of the statute; that, since greater vigilance would be promoted if knowledge of the
materiality of the deviation from the plan was not a necessary ingredient of the offence, subsection (2A)(b)
was to be construed as requiring knowledge of the deviation from the plan but imposing strict liability for the
deviation being a material one; that similarly, provided the appellants had knowledge of the manner in which
the works were carried out, they had committed an offence under subsection (2B)(b) even if they did not know
that there was a resulting risk of injury or damage; and that, accordingly, to that extent the offences charged
were of strict liability, and the case would be remitted to the magistrate for determination (post, pp. 14B-D,
15A, 16B, 17H - 18A, B-C, E-F, 19F).
Sherras v. De Rutzen [1895] 1 Q.B. 918, D.C.; Lim Chin Aik v. The Queen [1963] A.C. 160, P.C. and Sweet
v. Parsley [1970] A.C. 132, H.L.(E.) applied.
Attorney-General v. Chan Wing On [1964] H.K.L.R. 491 and Chung Yat v. The Queen [1978] H.K.L.R. 355
overruled.
Decision of the Court of Appeal of Hong Kong affirmed.
[1985] 3
A.C. Gammon Ltd. v. A.-G. of Hong Kong (P.C.)

The following cases are referred to in the judgment of their Lordships:

Attorney-General v. Chan Wing On [1964] H.K.L.R. 491

Chung Yat v. The Queen [1978] H.K.L.R. 355
James & Son Ltd. v. Smee [1955] 1 Q.B. 78; [1954] 3 W.L.R. 631; [1954] 3 All E.R. 273, D.C.
Lim Chin Aik v. The Queen [1963] A.C. 160; [1963] 2 W.L.R. 42; [1963] 1 All E.R. 223, P.C.
Sherras v. De Rutzen [1895] 1 Q.B. 918, D.C.
Sweet v. Parsley [1970] A.C. 132; [1969] 2 W.L.R. 470; [1969] 1 All E.R. 347, H.L.(E.)

The following additional cases were cited in argument:

Alphacell Ltd. v. Woodward [1972] A.C. 824; [1972] 2 W.L.R. 1320; [1972] 2 All E.R. 475,
H.L.(E.)
Grays Haulage Co. Ltd. v. Arnold [1966] 1 W.L.R. 534; [1966] 1 All E.R. 896, D.C.
McLeod (or Houston) v. Buchanan [1940] 2 All E.R. 179, H.L.(E.)
Reg. v. Caldwell [1982] A.C. 341; [1981] 2 W.L.R. 509; [1981] 1 All E.R. 961, H.L.(E.)
Reg. v. Halim Sulman [1977] H.K.L.R. 214
Reg. v. St. Margarets Trust Ltd. [1958] 1 W.L.R. 522; [1958] 2 All E.R. 289, C.C.A.
Reg. v. Warner [1969] 2 A.C. 256; [1968] 2 W.L.R. 1303; [1968] 2 All E.R. 356, H.L.(E.)
Tesco Supermarkets Ltd. v. Nattrass [1972] A.C. 153; [1971] 2 W.L.R. 1166; [1971] 2 All E.R. 127,
H.L.(E.)

APPEAL (No. 32 of 1983) by Gammon (Hong Kong) Ltd., Yee Chin Teo and Chak Shing Mak (the
first, second and third appellants), with special leave, from a judgment of the Court of Appeal of Hong
Kong (Huggins V.-P., Yang and Barker JJ.A.) dated 11 February 1983, whereby the court allowed the
appeal of the Attorney-General of Hong Kong by way of case stated from the dismissal on 14 May
1982 in the Hong Kong Magistrates' Court (Mr. S. A. M. Clay) of the charges against the appellants of
offences contrary to section 40(2A)(b) and (2B)(b) of the Buildings Ordinance. The Court of Appeal
remitted the case to the magistrate.
The facts are stated in the judgment of their Lordships.

Robert Alexander Q.C., John Mathew Q.C. and Anthony Hooper for the appellants. The question is
whether offences under section 40(2A)(b) and (2B)(b) of the Buildings Ordinance are an exception to
the general rule requiring mens rea for criminal matters.
The company was charged with deviating in a material way from approved plans contrary to section
40(2A)(b). In relation to an offence under subsection (2A)(a) in order to permit the incorporation of
defective materials there has to be mens rea in the sense of actual knowledge or recklessness within
the meaning established in Reg. v. Caldwell [1982] A.C. 341. Subsection (2A)(c) also requires mens
rea because of the words "knowingly misrepresents." It would therefore be unusual if subsection (2A)
(b) requires strict liability when it is within the ambit of offences of a similar kind which the law
recognises as requiring
[1985] 4
A.C. Gammon Ltd. v. A.-G. of Hong Kong (P.C.)

mens rea, and there is no reason for distinguishing subsection (2A)(b) from subsection (2A)(a) and
(c). The maximum penalty for breach of subsection (2A) is substantial, and that is a material factor
in considering whether the legislature intended to impose strict liability, and since the penalties
under subsection (2A)(a), (b) and (c) are the same mens rea must be required for all of them. The
word "knowingly" should be read into subsection (2A)(b), and that would include recklessness. The
absence of "knowingly" in subsection (2A)(b) when it is in subsection (2A)(c) does not necessarily
mean that the former is an offence of strict liability.
The appellants were all charged under section 40(2B)(b). The ambit of subsection (2B) is very wide
and it is not limited to authorised or registered persons. It can apply to unskilled labourers and to those
who are directly concerned with the building works but are merely carrying out tasks ordered by their
superiors. The site agent was charged under section 40(2B)(b) with "permitting" the works to be carried
out in a manner likely to cause risk of injury or damage, and he cannot be guilty without mens rea.
Similarly in relation to carrying out the works in such a manner mens rea is required. Subsection (2B)
also has heavy penalties.
[Counsel referred to the legislative history of the two offences.] The authorities show that there
is a presumption mens rea is required before a person can be guilty of a criminal offence, and that
presumption is only displaced if that is clearly or by necessary implication the effect of the statute:
see James & Son Ltd. v. Smee [1955] 1 Q.B. 78; Lim Chin Aik v. The Queen [1963] A.C. 160; Reg. v.
Warner [1969] 2 A.C. 256 and Sweet v. Parsley [1970] A.C. 132. In order to displace the presumption
it must be shown that the imposition of strict liability will assist the implementation of the statute.
The wide ambit of section 40(2B)(b) shows that strict liability cannot have been intended, because the
conduct of those performing menial tasks cannot affect the observance of the Buildings Ordinance.
It would not promote the objects of the Ordinance to impose strict liability on the appellants. A
company has to delegate to someone, and if that person does not supervise properly the company will
be liable under the ordinary principles of accountability in criminal law for acts of its servants: Tesco
Supermarkets Ltd. v. Nattrass [1972] A.C. 153. If the company recklessly chooses an incompetent
supervisor it will also be criminally liable. But if it establishes a proper system and chooses a suitable
person to be in charge it should not be liable because it cannot guard against every act which occurs
lower down the scale especially if one of its lesser employees simply makes a mistake. Even if greater
vigilance would be encouraged by strict liability, if those who are wholly innocent of fault may fall
within subsection (2B)(b) that indicates that strict liability is not required.
In Hong Kong there is an elaborate system of control over building works and compliance is ensured.
Many of the offences under the Buildings Ordinance require mens rea, and these two offences should
not be construed as ones of strict liability.
In relation to section 40(2A)(b) the person charged should have had knowledge or reason to know of
the deviation from the approved plan.
[1985] 5
A.C. Gammon Ltd. v. A.-G. of Hong Kong (P.C.)

Someone must necessarily know that the way the work is being carried out is a deviation and so it
would not be a charter for incompetence if mens rea is required. Inquiries would show who was in
charge of the particular part of the works giving rise to the deviation. The company would be liable
if the person appointed to be in charge of the operation knew of the deviation or was reckless. The
prosecution would call evidence to prove the deviation in a material way from the approved plan,
and then the evidential burden would be on the defendant to raise a doubt about whether he had the
necessary intent. He could call expert evidence to show that he could not have discovered the deviation.
Even if mens rea is required there will only be an acquittal in exceptional circumstances, and it is not
necessary for the offence to be one of strict liability.
If mens rea is required for subsection (2B)(b) the court would have to ask whether the works were
carried out in such a manner as was likely to cause a risk of injury or damage, and whether the
defendant knew or had reason to know it was likely to cause such risk. A workman who negligently
carried out works could come within the subsection, but criminal liability would only fall on an
unskilled labourer if he had the requisite mens rea.
There should only be strict liability if that would improve standards by making those responsible
more vigilant, and in the context of the Ordinance as a whole strict liability would not increase
vigilance. The registered contractor is responsible for creating a rational and efficient system for the
fulfilment of its obligations, and that includes the selection of competent personnel to perform the
functions of the company and gives rise to responsibility for the failure of such persons in the discharge
of their duties or their failure to supervise properly. Once a company has done all it can rationally and
sensibly be expected to do it should not be held criminally liable in relation to section 40(2A)(b) and
(2B)(b) by reason of strict liability.
[Reference was made to other sections of the Buildings Ordinance and to regulations 3, 40 and 41
of the Building (Administration) Regulations (1981 ed.).] In section 40(1) the word "contravenes" is
sometimes used, and that presupposes knowledge. The offences under subsection (1B)(b) all require
mens rea. Subsection (2A)(a) and (c) require mens rea, and there is nothing in the legislation or the
scheme of it requiring clearly or by necessary implication that subsection (2A)(b) should be regarded
in a different light in order to promote the objects of the legislation. The offences under subsection
(2A)(b) and (c) are similar and they relate to the same system of control over building works as other
offences. The word "contravenes" in subsections (2AB) and (2AC) also indicates the necessity for mens
rea. The words "authorizes or permits" in subsection (2B) show that there should be mens rea, and it
would be inappropriate to impose strict liability on the person who carries out the work he is told to
do by the person who authorises or permits it. Reasonable excuse is a defence under subsection (2C).
[Reference was made to section 40(3), (4), (5), (6) and (7).]
A careful and comprehensive scheme has been established to ensure building works are carried out
only by registered contractors and under
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A.C. Gammon Ltd. v. A.-G. of Hong Kong (P.C.)

the control of authorised persons of quality and, where necessary, registered structural engineers. Those
persons are liable to sanctions, including loss of the right to practise their professions or occupations,
if they do not fulfil their duties. In many cases where offences are committed the authorised person,
structural engineer or controlling servants of the contractors will have the appropriate mens rea to
give rise to criminal liability. There is nothing in section 40 to show that the legislature intended
the offences under subsections (2A)(b) and (2B) (b) to be offences of strict liability, and there are
numerous indications within the section which point to the contrary. Only if strict liability is imposed
clearly or by necessary implication should those subsections be so construed, and any doubt or
ambiguity as to their meaning should be resolved in favour of the appellants.
Reliance is placed upon Reg. v. Halim Sulman [1977] H.K.L.R. 214; Attorney-General v. Chan Wing
On [1964] H.K.L.R. 491 and Chung Yat v. The Queen [1978] H.K.L.R. 355.
The judgment of the Court of Appeal of Hong Kong [to which detailed reference was made] was
wrong and in relation to offences under section 40(2A)(b) and (2B)(b) mens rea is required.
Max Lucas Q. C., Director of Public Prosecutions, Hong Kong, Warwick Reid, Deputy Director of
Public Prosecutions, Hong Kong, and David Fitzpatrick, Crown Counsel, Hong Kong, for the Attorney-
General of Hong Kong. The case should be remitted to the magistrate if the Judicial Committee
concludes that something less than full mens rea is necessary for the offences charged.
The Court of Appeal took the view that it was not clear what facts were found by the magistrate.
That problem arose also in Alphacell Ltd. v. Woodward [1972] A.C. 824. Constructive knowledge was
considered in Reg. v. Warner [1969] 2 A.C. 256 and Chung Yat v. The Queen [1978] H.K.L.R. 355.
In deciding whether section 40(2A)(b) and (2B)(b) create offences of strict liability it is necessary to
determine the legislative intent in relation to them. The purpose of the Buildings Ordinance was the
protection of the public and the promotion of safety. The registered contractor in this case is a large
organisation and its criminal liability is limited to the acts of a very select group of people. If mens rea
is required the prosecution will have to prove that a significant corporate figure had knowledge of the
deviation or was present at the whole of the work which caused the likelihood of injury or damage,
or sanctioned the work which did that. Accordingly, in order to prove a charge under section 40(2B)
against a registered contractor someone in authority would have to have acted knowingly or recklessly,
but that would add nothing to the existing law and so strict liability must have been intended. The
legislature was trying to regulate the building trade, and the Court of Appeal of Hong Kong considered
that the gravity of the situation was such that strict liability was necessary.
A person can permit an act without permitting the consequences of it. The actus reus requires some
knowledge because a person cannot deviate from a plan unless he knows what is in the plan. Permitting
also requires some knowledge, but a person deliberately carrying out works
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A.C. Gammon Ltd. v. A.-G. of Hong Kong (P.C.)

does not need to know it was in such a manner as caused or was likely to cause injury.
[Reference was made to the Buildings Ordinance 1955 to 1979.] The Ordinance is self-policing
and it is the duty of the registered contractor to ensure compliance with it. If the charge under section
40(2A)(b) is read in conjunction with section 9(3)(b) that shows that the duty imposed on a registered
contractor is so high it is impossible to say that the deviation offence is not one of strict liability.
Section 40(2AA) creates an offence of strict liability with a statutory defence, and there is no reason
why the legislative intent should be different in relation to that from actually materially deviating from
the plan once work has begun and the danger is greater. The proviso to section 40(2AA) would be
unnecessary if the offence there is not one of strict liability.
Unless the offences under section 40 are offences of strict liability, where the registered contractor is
a large company it will rarely, if ever be subject to the criminal sanctions under the Ordinance, because
the delegate who fixes the company with criminal responsibility in accordance with the principles laid
down in Tesco Supermarkets Ltd. v. Nattrass [1972] A.C. 153 will not usually have any knowledge
of the manner and details of the work being carried out on the site. All the offences in section 40 are
offences of strict liability although defences are imported into some of the subsections. The whole
scheme of the Ordinance is that anyone contravening it is to be criminally liable.
The word "knowingly" in subsection (2A)(c) is an exception and because that word is used there it
should not necessarily be implied into other provisions. The offence under subsection (2A)(b) can only
be committed by the people mentioned in the subsection, and since only those on site would normally
have knowledge of the deviations the provision would be ineffective to catch the negligent unless there
is strict liability. The subsection only applies to such persons if they are "directly concerned" with the
works, but that includes the registered contractor who is under a duty to supervise continuously even if
he does not do so. In order for that provision to be effective strict liability is required.
The legislature can create offences of strict liability if it considers that to be necessary in the interests
of safety: Lim Chin Aik v. The Queen [1963] A.C. 160 and Reg. v. Halim Sulman [1977] H.K.L.R.
214. The conditions in Hong Kong require strict liability for these offences, and the wording of the
Ordinance also shows that strict liability is required. These offences are akin to public nuisance:
Alphacell Ltd. v. Woodward [1972] A.C. 824. Offences relating to public safety and public welfare are
exceptions to the general presumption of mens rea: Reg. v. Warner [1969] 2 A.C. 256; Sweet v. Parsley
[1970] A.C. 132; Reg. v. St. Margarets Trust Ltd. [1958] 1 W.L.R. 522; Tesco Supermarkets Ltd. v.
Nattrass [1972] A.C. 153 and Alphacell Ltd. v. Woodward [1972] A.C. 824.
To require full mens rea for these offences would be contrary to the policy of the Ordinance, which
seeks to regulate the activities of the building industry and to drive out the incompetent and the
negligent. The Ordinance performs the social utility of ensuring that those employed in the industry are
of such a type and standard that they will
[1985] 8
A.C. Gammon Ltd. v. A.-G. of Hong Kong (P.C.)

not cause buildings to collapse. The legislative concern for safety is shown by the heavy penalties
which can be imposed. In the circumstances the usual presumption of mens rea does not apply to these
offences.
In section 40(2B)(b) "permit" cannot mean permission of the likelihood of doing injury or damage.
Permitting an act is different from permitting the consequences of the act. Permission is not limited
to actual knowledge: McLeod (or Houston) v. Buchanan [1940] 2 All E.R. 179; James & Son Ltd. v.
Smee [1955] 1 Q.B. 78 and Grays Haulage Co. Ltd. v. Arnold [1966] 1 W.L.R. 534. Where there is
a duty or responsibility imposed on someone in relation to a particular provision that person can be
liable for "permitting" by delegating the duty and doing nothing. Anyone who thus permits works to be
carried out in a particular manner which in fact causes the likelihood of a risk of injury or damage will
be liable if his duty in relation to the work is not done competently.
Alexander Q.C. in reply. The following general propositions are not disputed. There is a general
presumption that mens rea is required before a person can be guilty of a criminal offence. This
presumption applies to statutory offences, and can only be displaced if this is clearly or by necessary
implication the effect of the statute. It is thus a strong presumption. The only category of situation
in which the presumption can be displaced is where the statute is concerned with an issue of social
concern such as public safety. The present statute is concerned with such an issue. Where a statute is
concerned with an issue of this kind, the presumption of mens rea nevertheless stands unless it can also
be shown that the creation of strict liability will be effective to promote the objects of the statute by
ensuring greater vigilance to prevent the commission of the prohibited act. Even where the statute is
concerned with an issue of social concern and the imposition of strict liability could promote greater
vigilance it still does not necessarily follow that strict liability is to be imposed. Other factors to be
considered are the fact that strict liability could cause numbers of innocent people to be convicted; and
the fact that the penalties are high, since the possibilities of the imposition of a nominal penalty (or the
exercise by the prosecutor of a discretion not to prosecute) are irrelevant. Both the legislature and the
courts have in recent years moved against the concept of strict liability as being one which is basically
contrary to a rational system of justice which demands some form of guilty mind. Sweet v. Parsley
[1970] A.C. 132 puts a number of the older cases in which strict liability was imposed in doubt. The
absence of words which make it obvious that mens rea is required, for example "knowingly," from
some provisions cannot be contrasted with the presence of those words in other provisions so as to give
rise to any indication that strict liability is intended by those other provisions. This applies even when
the provisions under consideration are subsections of the same section. The offence of "contravening"
an order is an indication that mens rea is required. If there is doubt as to whether strict liability was
intended, this should be resolved in favour of the defendant.
It is fallacious to say that strict liability is necessary because contractors would not be guilty of these
offences otherwise. Some offences under section 40 require mens rea, and if mens rea is required for
these offences a contractor would not avoid liability easily. A
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contractor is responsible for those to whom he delegates some part of his management functions
even if he gives the delegate total discretion, and if the delegate commits an offence the contractor
will be liable. It is impossible in principle to construe a section as imposing strict liability merely by
reference to the possible consequences for corporations when the same section also imposes liability
on individuals. Strict liability would catch individuals not guilty of any form of criminal or civil
culpability, such as an unskilled labourer who carried out works in obedience to orders, or a company
which had done everything it reasonably could but is made liable for a labourer who did something
likely to cause injury.
The legislative history of the Buildings Ordinance and the current provisions show that the legislature
never intended to create a general scheme of offences of strict liability, and no satisfactory reason has
been given why these particular offences should be ones for which strict liability is necessary when
they are part of a group of offences relating to public safety.
The entire actus reus has to be permitted, and so the defendant must permit the work knowing it is
likely to cause injury. Sweet v. Parsley [1970] A.C 132 is consistent with James & Son Ltd. v. Smee
[1955] 1 Q.B. 78. The permission must relate to all the facts constituting the offence. McLeod (or
Houston) v. Buchanan [1940] 2 All E.R. 179 is not inconsistent with this approach, or alternatively it
can be distinguished.
The general presumption is that sections should not be lightly construed as imposing strict liability.
There is no general scheme of strict liability in the Buildings Ordinance. The scheme is that certain
offences clearly require mens rea; some offences are couched in language which creates an offence
unless the defendant establishes a defence; and there are these offences suggested to be ones of strict
liability without any defence and therefore outside the general scheme. [Reference was made to the
Building Ordinance 1955.] The history of the legislation shows that strict liability was not intended.
The words "diverges or deviates" in section 40(2A)(b) connote knowledge of the deviation or
divergence, and since on general principles a person must know all the ingredients of the actus reus he
must know of the materiality of the deviation or divergence. There is nothing to suggest the legislature
intended strict liability for subsection (2A)(b) but not for (a) and (c), which require mens rea, and
the same penalties are prescribed. The fact that in subsection (2AA) the burden is on a defendant to
establish the defence under that subsection is no indication that a prior subsection intended to impose
strict liability. Mens rea is required for subsections (2AB) and (2AC). Section 40 is concerned with
public safety, and there is no reason why subsections (2A)(b) and (2B)(b) should be offences of strict
liability in isolation from the remaining subsections. It would be unjust to impose such high penalties
on the basis of strict liability.
[Detailed criticisms were made of the judgment of the Court of Appeal of Hong Kong.] When the
matter is properly analysed all the factors point against strict liability for these offences.
Cur. adv. vult.
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8 May. The judgment of their Lordships was delivered by LORD SCARMAN.

This appeal is from a judgment of the Court of Appeal of Hong Kong allowing the appeal of the
Attorney-General from the decision of the magistrate, whereby he dismissed charges brought against
the three appellants in respect of alleged contraventions of the Building Ordinance (Laws of Hong
Kong, 1981 rev.). The issue in the appeal is whether the offences charged are offences of strict liability
or require proof of mens rea as to their essential facts.
The first appellant, Gammon (Hong Kong) Ltd., ("the company") is a contractor registered under
the Ordinance and was carrying out building works at a site known as Marine Lot No. 3 Queen's
Road Central, Hong Kong. The second and third appellants were employees of the company, being
respectively the project manager and site agent for the works.
The appellants were charged under subsections (2A) and (2B) of section 40 of the Ordinance. It is
necessary to set out in full the two subsections:

"(2A) Any person for whom any building works, street works, lift works or escalator works are
being carried out and any authorised person, registered structural engineer, registered contractor
registered lift contractor or registered escalator contractor directly concerned with any such works
who - (a) permits or authorises to be incorporated in or used in the carrying out of any such works
any materials which - (i) are defective or do not comply with the provisions of this Ordinance; (ii)
have not been mixed, prepared, applied, used, erected, constructed, placed or fixed in the manner
required for such materials under this Ordinance; (b) diverges or deviates in any material way
from any work shown in a plan approved by the Building Authority under this Ordinance; or (c)
knowingly misrepresents a material fact in any plan, certificate form or notice given to the Building
Authority under this Ordinance, shall be guilty of an offence and shall be liable on conviction to a
fine of $250,000 and to imprisonment for three years. (2B) Any person (whether or not an authorised
person, a registered structural engineer or a registered contractor) directly concerned with any site
formation works, piling works, foundation works or other form of building works who - (a) carries
out or has carried out such works, or authorises or permits or has authorised or permitted such works
to be carried out, in such manner that it causes injury to any person or damage to any property; or (b)
carries out or has carried out such works, or authorises or permits or has authorised or permitted such
works to be carried out, in such manner as is likely to cause a risk of injury to any person or damage
to any property, shall be guilty of an offence and shall be liable on conviction to a fine of $250,000
and to imprisonment for three years."

The company was charged with a material deviation from an approved plan in contravention of
subsection (2A)(b), and with carrying out works
[1985] 11
A.C. Gammon Ltd. v. A.-G. of Hong Kong (P.C.)

in a manner likely to cause risk of injury or damage in contravention of subsection (2B)(b). The second
and third appellants were charged under subsection (2B)(b): it was charged against the second appellant
that, being the company's manager, he carried out the works, and against the third appellant that he
permitted the works to be carried out, in a manner likely to cause risk of injury or damage.
The appeal is by way of case stated. There was not, however, a full trial of the case in the magistrates'
court. At the conclusion of the prosecution case the magistrate ruled that mens rea (knowledge,
or "constructive knowledge") of all the facts was a necessary ingredient of the offences charged. The
defence, thereafter, confined its evidence to the issue of knowledge, and did not develop its case on the
other facts. Specifically, the defence led no evidence to counter the prosecution case that the deviation
from the plan was a material deviation or that the manner in which the works were carried out did in
truth create the likelihood of risk of injury or damage. Nor was the issue of "constructive knowledge"
(i.e., recklessness or mere negligence) fully explored.
As a result of the course taken at trial the case stated sets out only the facts and assumptions upon
which the magistrate, and later the Court of Appeal, decided one question of law, namely: are the
offences charged offences of strict liability? Their Lordships think that the course taken at the
magistrates' court was unfortunate: for it means that, whatever answer their Lordships give to the
question of law, the case will have to go back to the magistrate for a full trial. The expense already
incurred and the future expense of a second trial are too formidable to be viewed with equanimity even
when the parties are as substantial as this company and the Crown.
The facts relevant to the issue can be very briefly summarised. The company had delegated the
fulfilment of its obligations under the Ordinance on the site to the second and third appellants: it
is accepted, therefore, that the company is vicariously responsible if either of them contravened or
failed to comply with the provisions of the Ordinance. If either of them committed an offence in the
course of his employment, the company has also offended and is liable to the penalties imposed by the
Ordinance.
The offending act, which is the basis of all the charges, was the removal of part of the lateral support
system on the site; a system which was required in the interest of safety by plans approved by the
building authority. The removal was "a deviation of substance" from the plans: and it is to be assumed
for the purpose of the appeal (for it is not admitted by the appellants) that the removal was likely to
cause a risk of injury or damage. The magistrate was not satisfied on the evidence that either the second
or third appellant (for whose acts and omissions the company would be criminally responsible) knew
that the removal of part of the lateral support system constituted a material deviation from approved
plans or that it was likely to cause a risk of any injury or damage. He, therefore, dismissed the charges.
He stated the following questions of law for the opinion of the court:

"(1) Whether I was correct in law in holding that in relation to a prosecution under section 40(2A)(b)
of the Buildings Ordinance
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Cap. 123 it is necessary for the prosecution to prove that a defendant knowingly or intentionally
[deviated] or [diverged] in a material way from plans approved by the Building Authority. (2)
Whether I was correct in law in holding that in relation to a prosecution under section 40(2B)(b)
of the Buildings Ordinance Cap. 123 it is necessary for the prosecution to show that a defendant
knowingly or intentionally caused the likelihood of risk of injury to any person or damage to
property."

The Court of Appeal answered both questions in the negative and remitted the case to the magistrate.

The general law

In Sweet v. Parsley [1970] A.C. 132, 149 Lord Reid observed:

"it is firmly established by a host of authorities that mens rea is an essential ingredient of every
offence unless some reason can be found for holding that that is not necessary."

The question in the appeal is whether the Ordinance, correctly interpreted, provides a sound reason for
holding that the offences created by subsection (2A)(b) and (2B)(b) of section 40 of the Ordinance are
offences of strict liability. The Attorney-General of Hong Kong contends that it does; the appellants
contend that it does not.
Before, however, one considers the Ordinance it is necessary to have clearly in mind the applicable
principles of the criminal law. Three cases, all of them well known, bear directly on the issue. In
Sherras v. De Rutzen [1895] 1 Q.B. 918 the court had under consideration the prohibition contained
in the Licensing Act 1872 upon the supply by a licensee of liquor to a police constable while on duty.
The appellant's case was that he did not know and had no reason to believe that the constable was on
duty. The court quashed the conviction. Wright J., in the course of his judgment considered the classes
of case in which the presumption of mens rea can be displaced in English law. He saw three principal
classes of cases in which the presumption can be displaced: two of them are relevant to this appeal,
namely: (1) cases where the prohibited acts are not criminal in any real sense but are acts which in the
public interest are prohibited under a penalty; and (2) cases of public nuisance.
He prefaced his judgment by a statement of general principle, at p. 921:

"There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the
act, is an essential ingredient in every offence; but that presumption is liable to be displaced either
by the words of the statute creating the offence or by the subject matter with which it deals, and both
must be considered: ..."

In Lim Chin Aik v. The Queen [1963] A.C. 160 the Judicial Committee accepted Wright J.'s
formulation of principle as correct. But the Board warned, at pp. 173-174, that the adoption of the
principle does not dispose of the question whether the presumption is displaced.
[1985] 13
A.C. Gammon Ltd. v. A.-G. of Hong Kong (P.C.)

For the difficulty of applying the principle remains. What should be the proper inferences to be drawn
from the language of the statute under review? And what are the inferences to be drawn from the
subject matter with which the statute deals?
The Board went on to state an approach to these two questions which was later approved and accepted
by the House of Lords in Sweet v. Parsley [1970] A.C. 132. The Board said, at p. 174:

"Where the subject matter of the statute is the regulation for the public welfare of a particular activity
- statutes regulating the sale of food and drink are to be found among the earliest examples - it can
be and frequently has been inferred that the legislature intended that such activities should be carried
out under conditions of strict liability. The presumption is that the statute or statutory instrument
can be effectively enforced only if those in charge of the relevant activities are made responsible
for seeing that they are complied with. When such a presumption is to be inferred, it displaces the
ordinary presumption of mens rea."

But the Board added, at p. 175:

"Where it can be shown that the imposition of strict liability would result in the prosecution and
conviction of a class of persons whose conduct could not in any way affect the observance of the
law, their Lordships consider that, even where the statute is dealing with a grave social evil, strict
liability is not likely to be intended."

However, in Sweet v. Parsley [1970] A.C. 132, 149 Lord Reid refused to accept that in determining
the question of mens rea or strict liability it is sufficient merely to have regard to the subject matter
of the statute in construing the words of the provision creating the offence. Other considerations have
to be borne in mind including the nature of the prohibited act: if it were "truly criminal," it would be
necessary, for example, to consider whether the public interest really required that an innocent person
should suffer in order that fewer guilty men might escape.
In the course of his speech in Sweet v. Parsley [1970] A.C. 132 Lord Diplock addressed himself
directly to the question which their Lordships have to consider in this appeal. He said, at p. 163:

"But where the subject matter of a statute is the regulation of a particular activity involving
potential danger to public health, safety or morals in which citizens have a choice as to whether
they participate or not, the court may feel driven to infer an intention of Parliament to impose by
penal sanctions a higher duty of care on those who choose to participate and to place upon them an
obligation to take whatever measures may be necessary to prevent the prohibited act, without regard
to those considerations of cost or business practicability which play a part in the determination of
what would be required of them in order to fulfil the ordinary common law duty of care. But such
an inference is not lightly to be drawn, nor is there any room for it unless there is something that the
person on whom the obligation is imposed can do directly or
[1985] 14
A.C. Gammon Ltd. v. A.-G. of Hong Kong (P.C.)

indirectly, by supervision or inspection, by improvement of his business methods or by exhorting

those whom he may be expected to influence or control, which will promote the observance of the
obligation (see Lim Chin Aik v. The Queen [1963] A.C. 160, 174)."

In their Lordships' opinion, the law relevant to this appeal may be stated in the following propositions
(the formulation of which follows closely the written submission of the appellants' counsel, which their
Lordships gratefully acknowledge): (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.

The Ordinance

Their Lordships turn to consider the purpose and subject matter of the Ordinance. Its overall purpose
is clearly to regulate the planning, design and construction of the building works to which it relates in
the interests of safety. It covers a field of activity where there is, especially in Hong Kong, a potential
danger to public safety. And the activity which the Ordinance is intended to regulate is one in which
citizens have a choice as to whether they participate or not. Part IV (section 40) of the Ordinance makes
it very clear that the legislature intended that criminal sanctions for contraventions of the Ordinance
should be a feature of its enforcement. But it is not to be supposed that the legislature intended that any
of the offences created by the Ordinance should be offences of strict liability unless it is plain, from
a consideration of the subject matter of the Ordinance and of the wording of the particular provision
creating the offence, that an object of the Ordinance, e.g., the promotion of greater vigilance by those
having responsibility under the Ordinance, would be served by the imposition of strict liability.
The appellants submit that there is no necessity for strict liability in respect of any of the offences
charged. Their first submission is that strict liability would not promote greater vigilance. If the persons
charged had no knowledge of an essential fact, what could they have done to avoid its occurrence?
Their second submission is more comprehensive. They submit that strict liability in respect of any
offence created by the Ordinance would run counter to the structure and character of the Ordinance.
The Ordinance, it is submitted, relies not on criminal liability but on the elaborate and stringent
provisions for the registration of persons qualified to ensure that its requirements are met.
[1985] 15
A.C. Gammon Ltd. v. A.-G. of Hong Kong (P.C.)

So far as the first submission is concerned, their Lordships are satisfied that strict liability would
help to promote greater vigilance in the matters covered by the two offences with which this appeal
is concerned (the material deviation under section 40(2A)(b) and the risk of injury or damage under
subsection (2B)(b)). The second submission is more formidable. Their Lordships however, reject it
also. Their Lordships agree with the view expressed by the Court of Appeal as to the purpose and
subject matter of the Ordinance. The Court of Appeal saw no injustice in the imposition of heavy
penalties for offences under the Ordinance "whether resulting from intentional infringement of the law,
negligence, or incompetence." They made this powerful comment:

"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. A building contractor who delegates his legal responsibilities to an
agent can fairly be held liable if he appoints an agent who is incompetent or careless: he should
regulate his business in such a way as to avoid, on the one hand, the appointment of incompetent
agents and, on the other, the consequences of any carelessness by a competent agent. Only if he
is made responsible for seeing that the statutory standards are maintained can the purpose of the
legislation be attained and in such a case as this the presumption of strict liability displaces the
ordinary presumption of mens rea: see Lim Chin Aik v. The Queen [1963] A.C. 160, 174."

Important as are the provisions of the Ordinance for the registration, disqualification and discipline
of persons qualified, authorised and registered to perform the duties and obligations required by the
Ordinance, the legislature by enacting Part IV (section 40) of the Ordinance clearly took the view
that criminal liability and punishment were needed as a deterrent against slipshod or incompetent
supervision, control or execution of building works. The imposition of strict liability for some offences
clearly would emphasise to those concerned the need for high standards of care in the supervision
and execution of work. The view that their Lordships have reached, after the thorough review of the
Ordinance and its history which counsel undertook helpfully and with great assiduity in the course
of their submissions, is that, where the Ordinance provides for an offence in terms which are silent
or ambiguous as to the need for full mens rea covering all its essential ingredients, the wording of
the particular provision must be carefully examined against the background and in the context of the
Ordinance to determine whether it is necessary to interpret the silence or resolve the ambiguity in
favour of mens rea or of strict liability.
Put in positive terms, the conclusion of the Board is that it is consistent with the purpose of the
Ordinance in its regulation of the works to which it applies that at least some of the criminal offences
[1985] 16
A.C. Gammon Ltd. v. A.-G. of Hong Kong (P.C.)

which it creates should be of strict liability. It is a statute the subject matter of which may properly be
described as:

"the regulation of a particular activity involving potential danger to public health [and] safety ... in
which citizens have a choice as to whether they participate or not ...": per Lord Diplock in Sweet v.
Parsley [1970] A.C. 132, 163.

Whether, therefore, a particular provision of the statute creates an offence of full mens rea or of strict
liability must depend upon the true meaning of the words of the particular provision construed with
reference to its subject matter and to the question whether strict liability in respect of all or any of the
essential ingredients of the offence would promote the object of the provision.
Before leaving the consideration of the Ordinance as a whole their Lordships refer briefly to two
decisions of the Hong Kong courts upon which the appellants placed some reliance. The earlier in
date was a decision of Macfee J. on appeal from the magistrate. In Attorney-General v. Chan Wing
On [1964] H.K.L.R. 491 Macfee J. dismissed an appeal by the Crown against the acquittal of an
architect on a charge of using defective materials (section 27(5) of the 1955 Buildings Ordinance,
the predecessor of section 40(2A)(a)): the judge held that it was necessary to prove knowledge that
defective materials were used. The second case was Chung Yat v. The Queen [1978] H.K.L.R. 355, in
which it is clear that Leonard J. assumed that to establish offences (under the statutory provisions which
preceded section 40(2A)(a) and (b)) of using defective materials and of deviation from plan it was
necessary to prove knowledge that the materials were defective and that the deviations were material. It
was, however, not contended otherwise by the Crown: all parties assumed that before a person could be
convicted he "must be fixed with knowledge actual or constructive" that the defect existed and that the
deviations were material (p. 359).
Their Lordships accept that these decisions support the view of the Ordinance (and of the offences
charged in this case) for which the appellants contend. They were not, however, binding upon the Court
of Appeal. In their Lordships' opinion the Court of Appeal was fully entitled to reject any guidance that
there might be in these cases as to the true construction of the Ordinance, or its provisions. The Court of
Appeal clearly preferred to base their decision upon their own view as to the purpose of the Ordinance
and as to the meaning of the particular provisions which the Court had to construe. Their Lordships
have followed the same course. As will become clear, their Lordships agree with the Court of Appeal.
To the extent (if at all) that these two cases point to a different conclusion from that reached by the
Court of Appeal they must be held to be overruled.

Subsections (2A) and (2B)

Their Lordships now turn to consider the two subsections in detail and separately; for it does not
follow that, if one subsection should create an offence of strict liability, the other must also do so. But
first a few observations on certain features common to both.
[1985] 17
A.C. Gammon Ltd. v. A.-G. of Hong Kong (P.C.)

The first common feature is that both subsections have a characteristic of which Lord Reid spoke in
Sweet v. Parsley [1970] A.C. 132, 149. The specific provisions subsections (2A)(b) and (2B)(b) belong
to that:

"multitude of criminal enactments where the words of the Act simply make it an offence to do
certain things but where everyone agrees that there cannot be a conviction without proof of mens rea
in some form?"

Each provision clearly requires a degree of mens rea, but each is silent as to whether it is required
in respect of all the facts which together constitute the offence created. The issue here is, therefore,
a narrow one. Does subsection (2A)(b) require knowledge of the materiality of the deviation? Does
subsection (2B)(b) require knowledge of the likelihood of risk of injury or damage?
The second common feature is that each provision appears in a section which creates many other
offences, the wording of some, though not all, of which clearly requires full mens rea. A third common
feature is that the maximum penalties for the offences which they create are heavy: a fine of $250,000
and imprisonment for three years. There is no doubt that the penalty indicates the seriousness with
which the legislature viewed the offences.
The first of these features raises the determinative question in the appeal. Their Lordships will,
therefore, consider it later in respect of each subsection.
The second feature, in their Lordships' opinion, proves nothing. One would expect a wide range
of very different offences in a statute which establishes a comprehensive system of supervision and
control over a great range of complicated works in diverse circumstances. And it can be said with equal
force that a feature of section 40 is that in many cases where mens rea is required it expressly says so,
and that, where a defence of reasonable excuse or lack of knowledge is to be available, it makes express
provision to that end: examples may be seen in subsections (1B), (1C), (2A)(c), (2C), (6), (7) and (7A).
The severity of the maximum penalties is a more formidable point. But it has to be considered in the
light of the Ordinance read as a whole. For reasons which their Lordships have already developed, there
is nothing inconsistent with the purpose of the Ordinance in imposing severe penalties for offences of
strict liability. The legislature could reasonably have intended severity to be a significant deterrent,
bearing in mind the risks to public safety arising from some contraventions of the Ordinance. Their
Lordships agree with the view on this point of the Court of Appeal. It must be crucially important that
those who participate in or bear responsibility for the carrying out of works in a manner which complies
with the requirements of the Ordinance should know that severe penalties await them in the event of
any contravention or non-compliance with the Ordinance by themselves or by anyone over whom they
are required to exercise supervision or control.

Subsection (2A)
This provision applies to building owners, authorised persons (i.e.,
[1985] 18
A.C. Gammon Ltd. v. A.-G. of Hong Kong (P.C.)

architects, surveyors, structural engineers), registered structural engineers and registered contractors.
It is thus confined to persons bearing responsibility for the decision to undertake works and for
their supervision and control. There is plainly an element of mens rea in the offences it creates: the
wording of subparagraphs (a) and (b) does not make clear how far mens rea extends: the wording of
subparagraph (c) reveals an offence of full mens rea. The statutory predecessors to subparagraphs
(a) and (b) were considered in the two Hong Kong cases 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 neither the Court of Appeal
nor their Lordships have found helpful in determining this appeal.
The wording of subparagraph (b) clearly requires knowledge of the approved plan and of the fact
of deviation. But in their Lordships' view it would be of little use in promoting public safety if it
also required proof of knowledge of the materiality of the deviation. As it was put on behalf of the
Attorney-General, if the offence requires knowledge of the materiality of the deviation to be proved,
the defendant is virtually judge in his own cause. The object of the provision is to assist in preventing
material deviations from occurring. If a building owner, an authorised or a registered person is unaware
of the materiality of the deviation which he authorises (and knowledge of the deviation is necessary), he
plainly ought to be. He is made liable to criminal penalties because of the threat to public safety arising
from material deviations from plans occurring within the sphere of his responsibility. The effectiveness
of the Ordinance would be seriously weakened if it were open to such a person to plead ignorance
of what was material. In the words already quoted of the Court of Appeal: "it therefore behoves the
incompetent to stay away and the competent to conduct themselves with proper care."

Subsection (2B)
The construction of subsection (2B)(b) is more difficult, but their Lordships are satisfied that
it imposes strict liability for substantially the same reasons as those which have led them to this
conclusion in respect of subsection (2A)(b). The offence created clearly requires a degree of mens
rea. A person cannot carry out works or authorise or permit them to be carried out in a certain manner
unless he knows the manner which he is employing, authorising, or permitting. The appellants laid
great emphasis on the reference to permitting as an indication of full mens rea. They referred their
Lordships to James & Son Ltd. v. Smee [1955] 1 Q.B. 78. But their Lordships agree with the answer of
the Court of Appeal to this point:

"We would therefore hold that the word 'permitting' in section 40(2B)(b) does not by itself import
mens rea in the sense of intention to cause a likelihood of risk of injury or knowledge that such
likelihood would result but does require that the defendant shall have had a power to control whether
the actus reus (the
[1985] 19
A.C. Gammon Ltd. v. A.-G. of Hong Kong (P.C.)

carrying out of the works in the manner which in fact causes a likelihood of risk of injury) shall be
committed or not."

Two further points were, however, developed by the appellants. The first was the wide range of the
subsection. It covers any person (whether or not authorised or registered under the Ordinance) who is
directly concerned with the works. Thus an unskilled labourer engaged in carrying out works on the
site would be, it is said, criminally liable if he did something which was dangerous without knowing it.
Their Lordships are by no means certain that a labourer on site could be described as a person directly
concerned with the manner in which works are carried out on site: for he has no control. But, if he is, it
has to be shown under subparagraph (a) or (b) that he bears (or shares) responsibility for determining
the manner in which the works are carried out. The purpose of the provision is to prevent persons who
have the power of decision, whoever they may be, from choosing and putting into effect a manner of
carrying out the works which is likely to cause risk. If a workman should take it upon himself to decide,
for instance, to remove part of the necessary lateral support system of the site, there would be good
reason for making him criminally responsible under the Ordinance if what he chose to do was likely to
cause risk, whether he knew it or not; but it would have to be proved that the removal was his choice.
The offence is not merely "carrying out works" but doing so in a certain manner. No offence can be
committed save by one who bears (or shares) responsibility for deciding the manner in which the works
are to be carried out.
Their Lordships find some support for their view that subsection (2B)(b) is an offence of strict
liability in the wording of the offence created by (2B)(a). The wording of (a) points to strict liability,
once injury or damage has in fact been caused. Anyone who has carried out, authorised or permitted
work to be carried out in a manner which has in fact caused injury or damage is caught.

Conclusion
For these reasons their Lordships conclude that to the extent indicated the offences charged against
the appellants are of strict liability. Their counsel did develop a detailed argument on the long history
of the Buildings Ordinance beginning with its enactment in 1955 and continuing through many
amendments until the present day. But there is nothing in the history to suggest any view of the
Ordinance or the subsections under consideration other than that taken by the Court of Appeal and now
adopted by their Lordships. The basic submission of the appellants was that the imposition of strict
liability (to the extent analysed in the earlier part of this judgment) "could not in any way affect the
observance of the law ..." (words taken from Lim Chin Aik v. The Queen [1963] A.C. 160, 175). Their
Lordships reject the submission for the reasons which they have given.
Their Lordships will humbly advise Her Majesty that the appeal be dismissed. The order of the Court
of Appeal that the case be remitted to the magistrate stands. The appellants must pay the respondent's
costs
[1985] 20
A.C. Gammon Ltd. v. A.-G. of Hong Kong (P.C.)

in the Court of Appeal and before the Board. The costs in the magistrates' court must be for the
magistrate to decide upon conclusion of the further hearing in his court.

Solicitors: Denton Hall & Burgin; Charles Russell & Co.

S. S.