HKSAR v. LEIGHTON CONTRACTORS (ASIA) LTD.

HCMA1255/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1255 OF 1999

(ON APPEAL FROM SPS 9255 OF 1999)

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J U D G M E N T

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1. The appellant in this case, Leighton Contractors (Asia) Limited, was the contractor responsible for a construction site at Tsz Oi Estate, Phase 4 on 26 January 1999. The appellant was convicted, after trial by the learned magistrate on 9 November 1999, of a charge under Regulations 38P(1), 68(1)(a) and 68(2)(g) of the Construction Sites (Safety) Regulations under the Factories and Industrial Undertakings Ordinance, Cap.59, for failing to ensure that an opening through or from which a person on the site was liable to fall a distance of more than two metres, was provided with either a suitable guardrail of specified dimensions or a covering constructed as to prevent the fall of persons, materials and articles. Against this conviction, the appellant now appeals.

2. The prosecution's evidence came from an occupational safety officer in the Labour Department, Cheung Yuk Ping, who visited the site on 26 January 1999. At Flat 4 on the 13/F of Block J, she discovered an unfenced opening in the floor slab which she measured to be 240 cm long and 66 cm wide. Construction work was going on at the site and she took photographs of this opening. The opening led from the 13/F down to the 12/F with a height of 252 cm. She also saw workers working at Flat 4 on the 13/F (which was also shown on the photographs taken by her).

3. In cross-examination, she said she was not sure whether there was a tea-break for the workers between 3 pm and 4 pm that day. She did not see any workers doing floor slab work from the 12/F in relation to this opening. The workers she saw at Flat 4 on the 13/F were doing electrical conduits or piping and they were at least three metres away from the opening.

4. Evidence was called by the defence to the effect that a signboard had been put up at the entrance to the 13/F, with the words : "Danger; Do not Enter". Floor levelling work and aluminum paneling work were being carried out in relation to this opening on the 13/F. These works were being done by workers fixing the panels underneath from the 12/F. The opening was left so that they could complete the floor levelling work which would take about an hour. At the time of the visit by the safety officer from the Labour Department, there was a 45 minutes' tea-break for workers between 3:15 pm and 4:00 pm, therefore the workers doing this work from the 12/F had gone off to tea. Moreover, because of the danger sign put up on the 13/F, no workers were supposed to be on the 13/F until the floor levelling work had been completed and the aluminum panels fixed, such that this opening would have been completely filled in. The worker who was on the 13/F doing the electrical works, was trying to save time by starting the next day's work in advance.

5. There was also evidence from the defence that persons were not allowed on the 13/F because the aluminum panels, although supported, were not secure and persons might fall. The floor levelling work could not be done on the top of the panels. It was not safe for workers to be on the 13/F, so a guardrail could not be placed around the opening as it would have involved sending workers up onto the 13/F which was unsafe. In so far as a covering for the opening was concerned, it was possible to create a safety installation such as a fence or covering from the 12/F, but it was not practicable. The opening in question was in a corner and could only be supported by two sides. It would need additional support from underneath. It would take four to five workers about half an hour to create such a covering. For the normal practice in Hong Kong construction industry, such openings would not be covered but rather access to the area would be sealed off. While it was possible to have a fixed and secure covering, however, this would have damaged the alignment and levelling work already done. As for the placing of boards over the opening, this was not safe because one of the far ends of the opening was crumbling away.

6. Factually speaking, the magistrate found that there was little in dispute between the parties. It also appears from his Statement of Findings that he had accepted all the factual evidence given by both parties, there being no indication whatsoever that he had rejected any of the evidence adduced before him. He found, as facts proven beyond reasonable doubt, that :-

(a) the appellant was the contractor responsible for the construction site;

(b) there was an opening through or from which a person on the site was liable to fall a distance of more than two metres; and

(c) the opening was provided neither with a suitable guardrail nor covering as required by the regulation.

7. By way of defence, it was submitted to the learned magistrate, firstly, that although an offence of strict liability, the defence of due diligence was nevertheless available to the appellant which defence had been made out on the evidence. The learned magistrate, relying upon the decision of the Court of Appeal in AG v. Shun Shing Construction and Engineering Co. Ltd., MA511/1985, took the view that since there was no suitable guardrail nor covering provided to the opening, it necessarily meant a failure to ensure that a suitable guardrail or covering was provided to the opening. The learned magistrate further ruled that the defence of due diligence was not available to the appellant.

8. Secondly, the defence submitted that the regulation did not require the appellant to perform the impossible or the unlawful relying on the case of R v. Tsui Wai Ping, MA575/1993, this was accepted by the learned magistrate.

9. Thirdly, it was submitted that the statutory defence, provided by Regulation 38P(2), was available to the appellant and had been made out on the evidence on the basis that it was necessary to keep the opening uncovered and unguarded to continue the floor laying work, which work was completed the following day. Regulation 38P(2) states as follows :-

"Such guardrails and coverings may be removed or remain unerected

(a) where this is necessary in order to proceed with any permanent filling in, covering or enclosure; or

(b) for the time and to the extent necessary for the access of persons or the movement of materials or other purpose of the work."

10. In so far as the statutory defence is concerned, the learned magistrate accepted that had the work continued without interruption on 26 January 1999, then Regulation 38P(2) would have afforded a complete defence to the appellant. He accepted that the workers could not align the panels that they were laying whilst there was a guardrail or covering there. However, he found that the workers had left their work and went off for a tea-break for no less than 45 minutes, leaving the opening with neither guardrail nor covering. This was the position when the safety officer arrived at the site. In those circumstances, the learned magistrate was satisfied that the absence of a guardrail or covering was not necessary to proceed with any permanent filling in, covering or enclosure, or for the access of persons, or the movement of materials, or other purposes of the work.

11. On that basis, the learned magistrate convicted the appellant of the charge.

12. Three grounds of appeal were relied on by the appellant. Firstly, the appellant says that the learned magistrate erred in law or misdirected himself in ruling that the defence of due diligence was not available to the appellant in respect of an offence of strict liability. Secondly, it is alleged that the learned magistrate erred in law or misdirected himself in concluding that it was reasonably foreseeable that the workers might enter the 13/F and there was no evidence to support such conclusion. Thirdly, that the learned magistrate erred in concluding that the absence of a guardrail or covering was not necessary to proceed with any permanent filling in, covering or enclosure when he had accepted that the workers could not align the formwork panels they were installing if such a guardrail or covering was in place.

13. Dealing first with the 1st ground of appeal. It is conceded by the appellant that the offence for which the appellant was convicted is a strict liability offence. The appellant relies on two local cases for its argument on this ground, in Attorney General v. Fong Chin Yue [1995] 1 HKC 21 where the Court of Appeal, dealing with an offence of strict liability, held that it would be a defence if the accused could prove on the balance of probabilities that he believed for good and sufficient reason, though erroneously, that the provisions of the Ordinance had been complied with, which included a reasonable belief that duty had been paid. (In that case, the Court of Appeal was dealing with a strict liability offence under the Dutiable Commodities Ordinance, Cap.109.) The second case relied on by the appellant is HKSAR v. Paul Y-ITC Construction Ltd. [1998] 3 HKC 189 where it was held, inter alia, applying Fong Chin Yue's case that it would be a defence for the appellant to prove on balance of probabilities that it believed for good and sufficient reason, though erroneously, that there had been compliance with the Ordinance. In that case, the Court of Appeal was again dealing with a strict liability offence under the Noise Control Ordinance, Cap.400. However, from the facts of that case, the court came to the conclusion that no such defence was attempted and that the appellant did not call evidence, therefore it was wholly unnecessary for the magistrate to consider this aspect as a possible defence.

14. In my view, the decisions of the Court of Appeal in those two cases were limited to a defence of honest but mistaken belief of fact, which belief, had it been correct, would be such that the provisions of the Ordinance creating that strict liability offence would have been complied with and therefore no offence would have been committed. To illustrate, in Fong Chin Yue's case, honest but mistaken belief that duty had been paid and in Paul Y's case, similarly, honest but mistaken belief that a permit had been obtained under the Noise Control Ordinance for work at the construction site to be carried out on a Sunday.

15. The due diligence defence which was proffered before the learned magistrate at the trial, as I understood it, was that the appellant had in all the circumstances of the case, taken all reasonable steps and due diligence, in so far as it could be done, albeit that such steps taken fall short of full compliance with the provisions of the Ordinance. (It will be in this sense that I use the "due diligence defence" in this judgment.)

16. I have also been referred in argument by the appellant to an article entitled "Strict Liability in the Hong Kong Courts" by Professor Peter Wesley-Smith (1994) HKLJ 40. Not only does that article not seem to have drawn a clear distinction between the "due diligence defence" and the "defence of honest but mistaken belief" but certain passages in that article seem to have equated the two defences as being the same. That, however, is understandable due to the fact that that article precedes both Fong Chin Yue's case as well as the Paul Y's case in Hong Kong. To my mind, however, there is a vast difference between the two defences. For one thing, the honest but mistaken belief defence is such that the mistaken belief, if true, would be that the provisions of the Ordinance would have been complied with and therefore no offence committed, whereas for the due diligence defence, a defendant is saying "Although I have not fully complied with the Ordinance, I took all reasonable steps which is the best that could be done in the circumstances". In the first case, the defendant believes that the statutory provisions have been complied with, albeit mistakenly. In the second case, the defendant knows as a fact that the statutory provisions have not been complied with.

17. Viewed in this light, both Fong Chin Yue's case and the Paul Y's case cannot be authority for the appellant's argument that the due diligence defence was open to the appellant to put forward in this case. Short of appropriate words in the Ordinance (which create a strict liability offence) allowing for the defence of due diligence, I take the view that that would not be a defence open to a defendant. Accordingly, I find that the magistrate was correct in so ruling.

18. Even if the due diligence defence had been open to the appellant, the learned magistrate found, upon the evidence presented by the defence, that it was not impossible, although difficult or impracticable, for the defendant to provide from the 12/F a covering for this opening during the 45 minutes' tea-break. The learned magistrate accepted the defence evidence that it would have taken four to five workers working from the 12/F some half an hour to erect such a covering over this opening. This was not done. On these facts as found by the magistrate, it would be difficult to see how the defence of due diligence could avail the appellant on the facts of the case, particularly where these facts were established by the defence in its evidence.

19. During argument before me, Mr Lam appearing for the appellant, further argued that as part and parcel of the defence of due diligence, the appellant has also established honest but mistaken belief of fact. The mistaken belief of fact relied on by Mr Lam in his argument was that the appellant had mistakenly believed that there would be no workmen working on the 13/F at the material time. This point had never been argued before the magistrate nor was it included in the perfected ground of appeal settled by counsel. It was no doubt a last ditch attempt in trying to take advantage of the decisions in both Fong Chin Yue's case as well as Paul Y's case. Once again, I cannot see how this argument can avail the appellant. The mistaken belief referred to in both Fong Chin Yue's case and the Paul Y's case is a belief which, if true, result in the provisions of the Ordinance being complied with. Here, the mistaken belief, even if it turned out to be true, which in the process it did not, does not result in the provisions of Regulation 38P(1) being complied with. It was not a mistaken belief that suitable guardrail or covering as required by the Regulation had been provided for this opening.

20. For these reasons, I am of the view that the 1st ground of appeal fails.

21. Coming now to deal with the 2nd ground of appeal. In so far as this ground of appeal is concerned, the evidence coming from the defence was that a signboard was erected at the entrance to the 13/F saying "Danger; Do not Enter". The very fact that such a sign had to be erected with these words must in itself indicate that it was reasonably foreseeable that workmen would enter the 13/F area - else there would be no need for such a sign. This, therefore, was the evidence upon which the learned magistrate was entitled to come to the conclusion that he did. As it turned out even with such a warning sign, it did not prevent workers from entering onto the 13/F area. It could therefore only be naive of the defendant to think otherwise. I can see no merits in this ground.

22. As for the 3rd ground of appeal, this relates to the statutory defence provided by Regulation 38P(2). The learned magistrate had already accepted that the workers could not align the panels that they were laying whilst there was a guardrail or covering there, and that had that work continued without interruption then Regulation 38P(2) would have afforded a defence to the appellant. However, the learned magistrate took the view that because of the 45 minutes' tea-break when the opening was left with neither guardrail nor covering, this took it out of the statutory defence provided by Regulation 38P(2). The operative words in Regulation 38P(2)(a) are "where this is necessary in order to proceed". Since the works were not proceeding during the tea-break, sub-section 2(a) cannot apply. Likewise, the operative words in sub-section 2(b) are "for the time and to the extent necessary". Once again, since no works was going on during the tea-break, it could not have been necessary during that time for such guardrail or covering to be removed or remain unerected.

23. Under these circumstances, the learned magistrate cannot be faulted for the conclusions that he had arrived at that in the circumstances of this case, in particular during the tea break, the absence of the guardrail or covering was not necessary.

24. For the reason given above, the appeal against conviction is dismissed.