HKSAR v. PAUL Y. GENERAL CONTRACTORS LTD

HCMA 828/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 828 OF 2012

(ON APPEAL FROM KCS NO 10448 OF 2012)

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J U D G M E N T

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INTRODUCTION

1. The appellant was convicted, after trial, before Deputy Magistrate Veronica Heung Shuk Han (“the Magistrate”) of the following offence:

“Failing to ensure that, so far as was reasonably practicable, suitable and adequate safe access to and egress from a place of work on the site was provided and properly maintained, contrary to Regulations 38A(2), 68(1)(a) and 68(2)(g) of the Construction Sites (Safety) Regulations made under the Factories and Industrial Undertakings Ordinance, Cap 59 (the ‘FIUO’).”

2. The appellant was fined $30,000. 

3. This is the appellant’s appeal against conviction. 

A CASE OVERVIEW

4. On 17 September 2011, a worker (PW1) fell from height while climbing up a straight ladder affixed to a wall (“the ladder”) to go from the fire services pump room (“the pump room”) to the basement one floor above when he worked at a construction site at Tai Kok Tsui, Kowloon.  The prosecution alleged that the appellant, being the contractor responsible for the construction site, failed to ensure that, so far as was reasonably practicable, suitable and adequate safe access to and egress from the place of work on the site was provided.

5. The defence, on the other hand, contended that a sufficiently safe means of access and egress was provided.  The accident occurred due to the improper or negligent use of the ladder by PW1.  Failing that, the defence relied on s 18 of FIUO: that it was not reasonably practicable to provide suitable and adequate safe access and egress or it had taken all reasonable steps or practicable steps to provide suitable and adequate safe access and egress.  

UNDISPUTED FACTS

6. Before turning to the evidence of the prosecution and the defence, it is useful to list out the following undisputed facts:

(i)   The access and egress (“access/egress”) concerned was an opening (a 1 metre x 1 metre square) connecting the basement and the pump room one floor below, which was the only access/egress between the two floors;

(ii)   At the material time, an accident occurred and as a result a worker, PW1, sustained injuries.  PW1 was employed by the subcontractor and assigned to carry out installation work at the pump room;

(iii)   The accident occurred when PW1 climbed up the ladder from the pump room. When his body was passing through the opening and he was about to step onto the floor of the basement, he lost balance and fell back down to the pump room;

(iv)   The height between the floor of the pump room and the floor of the basement above was 3.17 metres;

(v)   The ladder consisted of 10 rungs.  The distance between each rung was 300 mm;

(vi)   The top rung of the ladder was 2.78 metres above the floor of the pump room and 0.39 metres (390 mm) below the floor of the basement;

(vii)  The distance between the stiles of the ladder was 500 mm.  The highest point of the stiles of the ladder was around the top rung of the ladder and was not extended beyond the opening;

(viii)  When a worker climbed up the ladder to the basement, he was facing the wall and therefore had to side-step to the left or right in order to set his foot on the floor of the basement ie it was a lateral egress;

(ix)   A water pipe (“the pipe”) and two metal conduits (“the conduits”) affixed to the wall of the basement had been used as handrails.  The distance between the pipe and the conduits was 1100 mm; and

(x)   After the accident, the appellant had, following the suggestions of the Labour Department (“LD”), installed two additional metal pipes as handrails which went through a metal sheet.  The metal sheet was at the same level of the floor of the basement and could serve as a foothold.  A safety cage was also installed. 

EVIDENCE OF THE PROSECUTION

7. The prosecution called four witnesses.  Apart from PW1, the prosecution also called PW2, the Assistant Project Manager employed by the appellant; PW3, the Occupational Safety Officer of LD who went to the place of the accident to take measurements; and PW4, an Acting Divisional Occupational Safety Officer of LD who gave expert evidence.  

8. PW1’s evidence was chiefly about how he came to fall down at the time of the accident.  His version in court differed somewhat from the version he gave to the LD in his previous statements.  I will deal with the discrepancies in greater detail later in this judgment.  Suffice it to say at this stage that the main difference lies in where PW1’s left hand was or what his left hand was doing at the moment he lost his balance.  In court, he said his left hand was not holding onto anything whereas in his statement he said his left hand was holding onto the conduits together with his right hand.  

9. PW2’s evidence was that he only started to work at the said construction site about two to three weeks before the accident.  He said the access/egress as well as the ladder were all constructed in accordance with the General Building Plan (“GBP”) (Exhibit D1) drawn up by the Architect (who was the Authorised Person) which had been approved by the Buildings Department (“BD”) as the “handover” standard.  There was a working plan (Exhibit D2), which was an enlargement of the layout of the pump room area on the GBP.  This plan had not been approved by BD.  There was also a section plan of the ladder (Exhibit D3) which was drawn, according to PW2, “only after we had understood the architectural plan”.[1]  It was unclear who the “we” were.

10. It would appear that of the three plans, only the GBP had been approved by BD. 

11. After the accident, the appellant made additional installation works at the request of the LD.  Such additional works were not in breach of the requirement laid down by the BD.  Had the appellant installed those additional works at the outset, the opening would have been smaller.  Further, the safety hoops would have made the delivery of large items “more difficult”.[2]  

12. According to reports at the site, PW2 believed personnel from the LD had made visits prior to the accident and had not made, in respect of the access/egress and the ladder, any suggestion for improvement.  

13. PW3 was the officer who went to the place of the accident to take measurements.  PW3 confirmed that his colleague(s) had visited the site to carry out inspection but he had not visited the site before.  He agreed that the purpose of the inspection was to enforce the relevant law, and that one of their main duties was to see whether the safety measures taken by the contractors in this construction site were adequate or not.  PW3 did not know if his colleague(s) had seen the ladder in question during the inspection.  

14. PW4 was called as an Expert witness.  He is an Acting Divisional Occupational Safety Officer of the LD.  He prepared a “Statement of Opinion” (Exhibit P7).  Relying on the British Standard – Specification for Permanently Fixed Ladders (“BS”), his opinion was that there was no suitable and adequate safe access/egress provided at the place of the accident due to multiple breaches of, or non-compliance with, the requirement under the BS:

(i)   The stiles of the ladder were not extended to a height to allow the top rung to be at least 1680 mm above the landing on the basement;

(ii)   While the distance between the stiles of the ladder (500 mm) was within the requirement stipulated under BS, ie between 300 mm to 600 mm, the distance between the pipe and the conduits (1100 mm) exceeded the required measurement and hence could not be used as handrails;

(iii)   The distance of 390 mm between the top rung of the ladder and the floor of the basement exceeded the acceptable distance of between 225 mm to 300 mm between rungs specified under BS; the top rung should have been level with the floor of the basement; and

(iv)   Due to the presence of pipes on the pump room floor adjacent to the base of the ladder, there should have been installed a safety cage to limit the range of fall to avoid collision with the pipes.  PW4 did not accept that the “beams” on the three sides of the opening could serve as a safety cage. 

15. PW4 was of the view that a booklet named “Safety at Work – A Guide to Ladders and Elevated Working Platforms” (“the Guidebook”) (Exhibit D4) issued by the LD was “merely for reference” and was “not a standard”.  As there wasn’t much written in the Guidebook, he “needed to read the standards of other countries” and the BS was one of them.  He had also considered the standards of the People’s Republic of China (“PRCS”).  He found the specifications under BS and the PRCS were similar and he adopted BS as it was the one which could most easily be found in Hong Kong. 

16. PW4 was also of the view that how PW1 had climbed up the ladder at the time of the accident did not affect his conclusion that the access/egress was unsafe. 

EVIDENCE OF THE DEFENCE

17. The defence relied on the evidence of PW2 regarding the construction of the ladder being in accordance with the GBP; the absence of comments or suggestions from the LD prior to the accident; and the difficulty posed by a smaller opening and the presence of a safety cage in delivering large items.  

18. The defence called one witness only, an expert witness DW1.  DW1 is an independent safety consultant.  He prepared the “Expert Opinion Report” (Exhibit D5). It was his evidence that the BS in relation to fixed ladders, while being useful as a reference, was not part of the Hong Kong legislation.  The Guidebook, which makes no mention of BS, was applicable in the present case even though there was no specific mention of a lateral access/egress.  His opinion was that the appellant had provided suitable and adequate safe access/egress at the place of the accident:

(i)   With reference to the Guidebook, it was not necessary to have a safety cage installed at the top of the ladder as the “beams” (with a height of 500 mm) on three sides of the opening already serve that purpose as they restrict the range of a fall;

(ii)   It was not necessary to have the stiles of the ladder extended beyond the floor of the basement as the pipe and conduits were considered sufficient to be used as handrails;

(iii)   The distance of 1100 mm between the pipe and conduits was acceptable as it was not a distance “unreachable by a person”;

(iv)   The distance of 390 mm between the top rung and the floor of the basement, while in excess of a reasonable distance of 300 mm, 90 mm makes little difference to the effect regarding the safety of the ladder itself;

(v)   The ladder was safe, but if the way a worker adopted to climb the ladder was unsafe, like using a “two-point contact” instead of a “three-point contact”, then it will become unsafe, a “two-point contact” makes it easier for one to slip;

(vi)   When workers (including PW1) obtained the “Green Card” issued by LD, they had already taken the mandatory safety training course and the techniques of safe-use of ladder had probably been mentioned during training;

(vii)  The “improvement” carried out by the appellant on the advice of the LD makes the ladder safer, but that does not mean the original design was unsafe; and

(viii)  The “improvement” did not fully comply with the BS specifications either. 

ISSUES AT THE TRIAL

19. The Magistrate framed the issues as follows [3]:

“18. There were two issues in the trial: Firstly, did the Appellant ensure that suitable and adequate safe access to and egress from the place of the accident was provided? Secondly, could the Appellant succeed in relying on the statutory defences under section 18 of the [FIUO]?”

FINDINGS OF FACTS BY THE MAGISTRATE

Issue (1)

20. The Magistrate accepted the opinion of PW4 and rejected the evidence of DW1.  She found that it was practicable to have the stiles extended beyond the opening; a safety cage installed on the ladder; and the top rung or the surface constructed at the same level as the landing place.  She found that “Only by doing (this) could (one) ensure that a safe means of access and egress (was provided) at the place of the accident.” [4] 

21. As to the discrepancies in PW1's description of how he fell, the Magistrate was of the view that such discrepancies did not affect his credibility and reliability, nor did they affect whether a suitable and adequate safe access/egress was provided.  Further, the Magistrate was also of the view that PW1 had not used the “facilities available” improperly.[5] 

Issue (2)

22. The Magistrate found, referring to the evidence of PW2 (who testified that at the material time large building materials had basically been delivered to the pump room), that the installation of a safety cage would only have made it more difficult, but not impossible for the delivery of materials.[6] 

23. The Magistrate noted that the GBP drawn up by the architect with conditions imposed by the BD only served as the “handover” standard after the completion of the construction work.  BD had not specified how the ladder should be installed or how the means of access/egress should be constructed when the construction work was in progress.  The installation of a safety cage would not be in breach of the specifications laid down by the BD.

24. The Magistrate found that there was no evidence to show that the appellant had taken reasonably practicable positive acts or actions, or had given any instructions or provided training to workers regarding the safe-use of the ladder (such as maintaining a “three-point contact”).[7]  

25. The Magistrate found that the appellant could not delegate its duty of ensuring a suitable and adequate safe access/egress to others (relying on the judgment of Deputy High Court Judge Andrew Chan (“Judge Chan”) (as he then was) in HKSAR v China Road And Bridge Corporation & Ors [8]). 

GROUNDS OF APPEAL

26. Mr Toby Jenkyn-Jones, counsel for the appellant, advanced 4 grounds of appeal:

(1)   The Magistrate failed to properly evaluate whether the accident was caused by the improper or negligent use of the ladder and whether the access/egress was otherwise by itself adequate, suitable and safe;

(2)   The Magistrate wrongly adopted PW4’s expert opinion that the BS should apply and failed to attach weight to the opinion of DW1 that the access/egress was adequate, suitable and safe;

(3)   When considering the application of the words “so far as is reasonably practicable” contained in s 38A of the Construction Sites (Safety) Regulations, Cap 59, the Magistrate applied the wrong legal test of “impossibility”; and

(4)   The Magistrate failed to consider the common law defence of honest and reasonable belief. 

27. It can be seen that Grounds 1 and 2 concern Issue (1), Ground 3 concerns Issue (2) and Ground 4 is new in the sense that such a common law defence was never raised before the magistrate.  

THE TWO ISSUES POINT

28. It should also be noted that in his written submission Mr Jenkyn-Jones also complained about the way the magistrate dealt with the two issues. However, such a complaint was not made under any grounds of appeal. 

THE LAW

29. Regulation 38A(2) of the Construction Sites (Safety) Regulations made under the FIUO provides:

“The contractor responsible for any construction site shall ensure that, so far as is reasonably practicable, suitable and adequate safe access to and egress from every place of work on the site is provided and properly maintained.”

30. While there was no defence specifically provided for Regulation 38A, there was a general defence provided under s 18(1) of FIUO:

“(1) In a proceeding for an offence under a provision in this Ordinance consisting of a failure to comply with a duty or requirement to do something so far as is necessary, where practicable, so far as is reasonably practicable, or so far as practicable or to take all reasonable steps, all practicable steps, adequate steps or all reasonably practicable steps to do something, the onus is on the accused to prove that it was not necessary, nor practicable or not reasonably practicable to do more than was in fact done to satisfy the duty or requirement, or that he has taken all reasonable steps, or practicable steps or done the appropriate thing to satisfy the duty or requirement.”

31. The word “ensure” is not defined under the Ordinance.  The respondent submitted that “ensure” is “to make sure, to make certain, to satisfy oneself that a state of affairs in fact exists”, citing the judgment of Stock JA (as he then was) in HKSAR v Shun Tak Properties Ltd [9], which was adopted in the China Road and Bridge Corporation case.

32. In the Shun Tak case, the Court of Appeal was dealing with a “suspended working platform” (“SWP”) under different regulations made under FIUO.  The allegation being that the owner failed to ensure that a SWP was not used for carrying persons unless it was properly maintained.  The issue before the Court of Appeal was whether the offence was one of absolute liability and whether the common law due diligence defence was available.  

33. It was in this context that Stock JA (as he then was) said, (at para 134 of the judgment):

“To ensure is to make sure, to make certain, to satisfy oneself that a state of affairs in fact exists. The duty imposed is one that, in my opinion, goes beyond a duty to take reasonable steps to ensure safety of those who might be placed at risk by their engagement in platform work. It is, rather, a duty to ensure that they are in fact safe. It is therefore a non-delegable duty of care; a special responsibility to see to it that a state of affairs exists…”

34. Judge Chan was dealing with the alleged failure to ensure suitable and adequate access/egress in the China Road and Bridge Corporation case, ie the same provision under consideration in the present case.  Judge Chan adopted the definition of “ensure” propounded by Stock JA in the Shun Tak case.  In doing so, Judge Chan (in para 19 of the judgment) noted that Stock JA was dealing with the regulation concerning SWP and said “…it is impossible that the term ‘to ensure’ be construed differently under different provisions.  The Court of Appeal in that case even found that the statute concerned created an ‘absolute liability’ offence.  Therefore [the two appellants] in the present case could never transfer or delegate this duty to a third party.”  

35. I am also of the view that “to ensure” in the present case means the appellant has to make sure, to satisfy itself that a suitable and adequate safe access/egress was provided at the site and such a duty is not delegable.  It should be noted, however, that the issue of delegation does not arise in this case.  I will elaborate more when I deal with the grounds of appeal.  

ISSUES INVOLVED

36. In the present case, the first issue to be decided is whether there was evidence to support a finding that there was no suitable and adequate safe access/egress provided.  If there was no such evidence or the evidence adduced does not support such a finding, then that is the end of the matter and the appellant must be acquitted.  

37. If there was evidence to support such a finding, the second issue to be decided is whether the prosecution can prove beyond a reasonable doubt that the appellant has failed to ensure that, so far as is reasonably practicable, suitable and adequate safe access/egress was provided.  In this context, it is open to the appellant to rely on the general defence provided under s 18 of FIUO to show, on a balance of probabilities, that it is not reasonably practicable to provide suitable and adequate safe access/egress, or that he has taken all reasonable or practicable steps to satisfy the duty imposed.  

THE TWO ISSUES POINT

38. Before turning to the grounds of appeal, I will first deal with the two issues point raised by Mr Jenkyn-Jones. 

39. Referring to para 18 of the Statement of Findings (“SF”), Mr Jenkyn-Jones submitted that the way the Magistrate framed the two issues suggests the possibility that she felt the appellant had a burden of proof to meet regardless of whether the prosecution established the essential elements of the offence. 

40. Although the way the Magistrate framed the issues differs from mine, having read the SF as a whole, and bearing in mind the fact that defence counsel in his closing submission [10] had clearly submitted to the Magistrate that “the basic facts must be proved” before the burden of proof shifts to the defendant under s 18 of FIUO, and the fact that the Magistrate is a trained lawyer and an experienced Magistrate, I am satisfied she was aware that Issue 2 would only arise when there was evidence supporting a finding that there was no suitable and adequate safe access/egress provided.  There is no danger of the kind suggested by Mr Jenkyn-Jones. 

GROUNDS 1 AND 2

41. Both these grounds relate to the question of whether a suitable and adequate safe access/egress was provided. I will deal with them together. 

APPELLANT’S SUBMISSION

Ground 1

42. In relation to Ground 1, Mr Jenkyn-Jones submitted that the prosecution had to establish that the accident occurred because of the ladder’s configuration, in particular when the magistrate found as a fact that PW1 “lost his balance”, which is a feature attributed to PW1 more than to the ladder.  The ladder was “regulation compliant” and had been in existence and in use without any mishap for a considerable time.  LD had officially visited the site on many occasions and the ladder’s configuration had never been the subject of any criticism.

43. Although the Magistrate noted the discrepancies in PW1’s evidence, she did not resolve such discrepancies other than ruling that they did not affect PW1’s credibility and reliability, and that how PW1 used the ladder was either irrelevant or unimportant to the determination as to whether the access/egress was suitable and adequately safe.

Ground 2

44. In relation to Ground 2, Mr Jenkyn-Jones submitted the Magistrate wrongly adopted PW4’s opinion that the BS applied in this case, notwithstanding that:

(i)   There was no legal requirement under the FIUO or related regulations to adopt or apply the BS and the LD had not referred to it in any of its publications;

(ii)   The parts in the BS consulted by PW4 appeared to aim principally at high structures, buildings and chimneys;

(iii)   No Codes of Practice (COP) were issued by the LD incorporating the BS relied upon for fixed ladders, in any event, a breach of a COP is not equivalent to non-compliance with a regulation;

(iv)   Enquiries with the LD though normal research channel would not have disclosed that the ladder in question would be subject to BS;

(v)   Where there is domestic guidance provided by the LD, it is more appropriate to have due regard to such guidance than to arbitrarily search for international guidance;

(vi)   The post-accident additional installation did not comply fully with the BS; and

(vii)  A registered general building contractor was not expected or allowed to deviate from the approved building plans. 

45. Mr Jenkyn-Jones submitted that the Magistrate had in effect elevated the BS to a subsidiary piece of local legislation of binding effect.  She had endorsed the LD’s hitherto unknown and unannounced requirement (that contractors should apply the BS).  Such compliance requirement was tainted with uncertainty (citing HKSAR v Lam Geotechnics Ltd [11] and Utah Construction & Engineering Property Ltd and Anor v Janos Pataky [12] in support).  

46. Mr Jenkyn-Jones submitted that the Guidebook, whilst not covering every possible scenario, was not rendered wholly unsuitable for consultation.  Even if the Guidebook was unsuitable for consultation, it does not mean that an unidentified foreign standard must be consulted.  

RESPONDENT’S RESPONSE

47. Mr Cliff Ip, Public Prosecutor for the respondent submitted that the legal framework of s 38A(2) of Cap 59I was expressly for the protection of workers. 

48. Apart from relying on the meaning of the word “ensure” as propounded by Stock JA in the Shun Tak case and adopted by Judge Chan in the China Road and Bridge Corporation case, Mr Ip also submitted that when considering the word “safe”, regard must be had to the “circumstances likely to occur, including the fact that employees do not always behave with reasonable care for their own safety”.  He further submitted that a means of access “is unsafe if it is a possible cause of injury to anybody acting in a way a human being may be reasonably expected to act in circumstances which may reasonably be expected to occur”; and where there is inherent peril and an inherent risk of falling from a place high above the nearest floor level (citing Baker v Quantum Clothing Group Ltd and other companies[13] and Trott v W.E. Smith (Erectors) Ltd [14]). 

49. As to Ground 1, Mr Ip submitted that it is incumbent on the appellant to consider the inherent risk of working at a height and the related human errors.  He submitted that it is futile to point out PW1’s inconsistent testimony with a view of showing that the accident was due to his negligence.  

50. Mr Ip further submitted that one should use common sense and focus on the entire access/egress system, together with the pipe and the conduits; the opening; the basement floor; and all the relevant dimensions.  The system involved the self-evident possibility and inherent risk of falling from the top of the ladder when one attempts to go from the top rung to the basement floor.  

51. In relation to Ground 2, Mr Ip submitted that common sense would prevail over DW1’s opinion, which lacks professional assessment and reasonable consideration, in particular when a worker has to exert force to lift his body while moving at a height. 

52. Mr Ip supported the Magistrate’s decision in ruling that BS was applicable in this case, particularly when BS was used before the Reunification and there was no indication of BS being “dis-apply” after the Reunification. 

53. Mr Ip submitted that if certain legal approach already existed before or during the drafting of the Basic Law, that legal approach would continue unless the Basic Law drafters intended otherwise, as it is important to have “continuity and stability”.  

54. Mr Ip submitted that in the absence of any evidence that the appellant had had complied with other sound national standards, BS should apply “by default”.  Further, in the present case, there was not just one minor breach of the BS, but multiple breaches. 

55. Mr Ip also supported the Magistrate’s finding that the Guidebook was not applicable in this case. 

DISCUSSION

56. The first issue to consider, in my view, is whether the prosecution succeeded in proving that the access/egress was unsafe at the material time, i.e. on 17 September 2011.  The fact that an accident had occurred on that day, by itself, does not necessarily mean that the access/egress was unsafe.  

57. The Magistrate has correctly pointed out what she has to do [15]:

“21. I agree with the defence submission that when an accident occurred, it was not necessarily the case that (the defendant) had failed to provide suitable and adequate safe access and egress. Furthermore, the legal principle of res ipsa loquitur was not applicable in this case. Also, I am not required to find out whether the access and egress (provided) at the place of the accident was the safest one or what kind of access and egress was relatively safer. I am only required to consider whether there was suitable and adequate safe access and egress (provided) at the place of the accident. This is a finding of facts (which I have to make)”.

58. Not only that an accident having occurred does not necessarily mean that the access/egress was unsafe, one must also be mindful, in considering whether the access/egress was a suitable and adequate safe one, not to view the matter with hindsight.  

59. How did the prosecution go about proving this issue?  The prosecution mainly relied on the expert evidence of PW4 in saying that the access/egress was unsafe.  Though PW1 was called to give evidence on how he fell, no reliance was made on his evidence by the prosecution.  The prosecution stance was that how PW1 fell was irrelevant as the access/egress was unsafe, as indicated by the evidence of PW4.  

60. The Magistrate was of the view that it was necessary for her to make reference to some safety standards and since the BS was all along used in Hong Kong before the handover, she saw no reason why she could not refer to BS when considering this case [16]:

“25. I am of the view that in order to consider the fact as to whether the only access and egress (provided) at the place of the accident was a suitable and adequate safe access and egress, it is certainly necessary (for me) to make reference to some standards. Of course, different standards have been established by different countries around the world and different countries probably have different standards. I believe that the British Standard is not the only safety standard worth making reference to. However, before the transfer of sovereignty in 1997, Hong Kong had all along been using the British Standard, and there was no evidence to show that the British Standard was not the suitable and adequate safety index (to be referred to) after the transfer of sovereignty. Neither was there evidence to show that the standards adopted by other countries were in conflict with the British Standard. Not to mention that there was no evidence to show that I should rule out the British Standard when considering (the facts of this case). (Therefore,) I see no reason why after the transfer of sovereignty in 1997, the British Standard is no longer applicable in Hong Kong and as a result of which the court cannot or should not make reference to it when considering this case.”

61. After refusing to accept the evidence of DW1 that there was a suitable and adequate safe access/egress, the Magistrate said [17]:

“27. The evidence of PW4 was simple, direct and unshaken under cross-examination. His opinions were clear, well-founded, reasonable and logical. He was an honest and reliable witness. I accepted his evidence and adopted his opinions. (I) found that there was no a suitable and adequate safe access and egress (provided) at the place of the accident.

28.  At the same time, I also agree with the opinions put forward by PW4 in paragraph 14 of his ‘Statement of Opinion’ (Prosecution Exhibit, P7).  Put simply, it was practicable to have the stiles extended.  It was equally practicable to have a safety cage installed on the straight ladder, and to have the top rung or the surface (sic) (literal translation) of the straight ladder constructed at the same level as the landing place for climbing up and down the ladder.  Only by doing (this) could (one) ensure that a safe means of access and egress (was provided) at the place of the accident.”  [My emphasis]

62. Was the Magistrate correct in finding that BS was applicable in this case?  

63. There is no dispute that the BS was not part of the Hong Kong legislation.  The Guidebook issued by LD does not refer to any international standards, let alone BS.  No COP incorporating BS (ie regarding fixed ladders) was issued by LD.  Section (III) of the Guidebook refers to fixed access ladders but not one with a lateral access/egress.  

64. Both experts testified that BS was used in Hong Kong prior to the Reunification.  DW1 said before the Reunification, BS was “almost used as the basis for all”.  After Reunification, however, people in his industry started to get in touch with standards of other countries more.[18] 

65. DW1 also testified that if he were to design a straight ladder affixed to the wall he would have tended to refer to the “data” from BS and have the ladder “done in a better way”.  However, since the ladder was already in existence, he would not have requested any alteration.[19]  

66. As to why PW4 adopted BS, PW4’s evidence was simply that BS was used before the Reunification.  Whilst PW4 accepted after the Reunification, other international standards could also be consulted, he did not do so as it was impossible for him to read “the standards of all countries”.  He chose BS – after looking at BS and PRCS – as BS “could be obtained in Hong Kong most easily” and “their specifications were quite similar”.[20]  

67. In my view, no proper basis had been shown why BS has to be “the standard”.  At most, BS could only be used as reference.  I cannot accept the respondent’s view that since BS was used prior to the Reunification, in the absence of any indication to “dis-apply” and for the sake of “continuity and stability”, BS must be adopted “by default.”  It is unfair to penalise the appellant purely on the ground that the appellant had failed to comply fully with BS, particularly when it was unknown to any contractor (including the appellant) that experts from LD would have applied BS.

68. Whilst a contractor who has ensured that the configuration of a straight ladder with an opening as access/egress was in full compliance with internationally recognised standards, such as the BS, is unlikely to find himself being accused of failing to provide a suitable and adequate safe access/egress, the converse is not necessarily true.  It is still necessary to evaluate and assess how the breaches, in the particular circumstances of the case, render the access/egress unsafe.  

69. Apart from pointing out that the ladder in question was in breach of the specifications of the BS, PW4 made no assessment as to why and how the access/egress was not a suitable and adequate safe one despite the multiple breaches of BS.  He merely relied on the measurement and configuration specified in BS and opined that the access/egress was unsafe.  He agreed that “at the end of the day”, it “actually boiled down to one point” – the “non-compliance with the BS”.[21]  It is of no surprise that his evidence was “simple, direct and unshaken under cross-examination”.  

70. The Magistrate simply accepted PW4’s opinion in toto, without stepping back to assess how and why the access/egress was unsafe.  She has in effect treated the BS as, or has elevated BS to the level of, a piece of binding legislation.  The configuration of the ladder did not comply fully with BS, therefore, the access/egress was not a suitable and adequate safe one.  (I used the term “did not comply fully” because some part of the configuration, such as the distance between the stiles and between each rung did comply with the specifications in BS.)  

71. DW1, on the other hand, did give his opinion as to how and why the breaches do not affect the question of safety.  While the Magistrate is fully entitled, as a fact-finder, not to accept DW1’s opinion, it is unclear what the basis of her refusal was, save that she preferred PW4’s evidence. 

72. The respondent submitted that one should use common sense and disregard the evidence of DW1.  It must be borne in mind, however, that the prosecution did not simply rely on “common sense” in proving its case against the appellant.  It relied, to a great extent, on the expert evidence of PW4, who in turn relied on the specifications according to BS.  

73. In the case of Trott (relied on by the respondent), an experienced steel erector was required to walk along a 3-inches wide channel on a structure which was 20 feet 6 inches above the ground.  About 10 feet of the channel was without any handhold.  The worker fell and sustained fatal injuries.  It is therefore not surprising that Parker LJ applied the following test (at page 1162 of the judgment):

“… a means of access is not ‘safe’ [within the regulation] if it is a possible cause of injury to anybody acting in a way that a human being may be reasonably expected to act in circumstances which may reasonably be expected to occur …”

74. The circumstances of this case are quite different from those in the case of Trott.  This case does not involve such obvious inherent risk of falling.  

75. Mr Ip placed emphasis on the fact that a worker has to exert force to lift his body up when moving at height.  One must bear in mind that in the case of a straight ladder affixed to the wall, every step up from one rung to another would necessarily involve the lifting of one’s body.  The question is whether the set up (ie with a distance of 390 mm between the top rung and the floor of the basement, and a distance of 1100 mm between the pipe and conduits being used as handrails) was such that the force needed to be used or exerted renders the access/egress unsuitable and not adequately safe.  

76. There was no evidence from any worker about the unsuitability or inadequacy of the set up.  PW1 did not say that the distance of 390 mm between the top rung and the floor of the basement was too high or too steep for him, nor did he say the distance of 1100 mm was too wide for him to use the pipe and conduits as handrails. 

77. One must also not forget that workers have been using the same access/egress for months before the day of the accident without any mishap.  PW1 himself had also used the same access/egress for a couple of weeks before the accident.  

78. An access/egress can be suitable and adequately safe and yet an accident still occurred.  No system is absolutely safe.  In the present case, it is necessary to examine how PW1 came to meet with the accident as well.  

79. PW1’s evidence in court was that when he stood on the top rung, he had to grab hold of the conduits on the right with his right hand while grabbing hold of the pipe on the left with his left hand, like a “gecko climbing stunt”.  After that he exerted force to lift his body upwards to place his right foot onto the floor of the basement level.  He then exerted force to put his left foot over to where his right foot was, and at the same time, he let go of his left hand from holding the pipe on his left.  He said it was at this juncture that he lost balance and fell back to the pump room.[22]  

80. In his statements to the LD, PW1’s description of the incident was slightly different.  At first he said he fell inadvertently when he was climbing the ladder.[23]  In a later statement, he said his left foot was still on the top rung after he had exerted force to place his right foot on the floor of the basement.  He first let go of his left hand and moved it to where his right hand was to hold onto the conduits, he then lifted up his left foot and was about to put it next to his right foot on the landing when he lost balance and fell.[24]  

81. When PW1 was cross-examined on the two versions (ie whether his left hand was holding the conduits together with his right hand, or holding nothing), at first PW1 agreed that the version in his statement to the LD was correct.  He later claimed that that version was not correct[25] and reiterated that his version in court was the correct one, that is to say, he let go of his left hand and lifted his left foot at the same time when he tried to place his left foot on the level of the basement floor.  

82. It should be noted that when PW1 described his right hand holding the conduits and his left hand the pipe, with his right foot already lifted onto the floor of the basement, he used the expression “three points” to describe his then position.[26]  It is clear that PW1 understood the importance of a “three-point contact”. 

83. PW1 was not cross-examined as to why there were the two different versions.  In fact, PW1 said in evidence that there were many ways to climb up and down the steps[27] without elaborating what all those different ways were.  More importantly, PW1 was not questioned on his evidence that he had to let go of the pipe in his left hand at the same time when he exerted force to move his left foot over to his right foot, and he had to rely on his right hand to grab hold of the conduits so that his body could fully move to the right side.[28]  

84. The reason why PW1 “had to let go” of the pipe at the same time when he lifted his left foot was unclear.  Whilst one possible interpretation is that the distance of 1100 mm was too wide for him to use the pipe and conduits as handrails, his evidence in this respect remains unclear and not clarified.  

85. The reason why the Magistrate did not resolve the discrepancies was because she had concluded that the failure to comply with the BS rendered the ladder and the opening an unsafe access/egress.  She found it was not necessary to consider how PW1 fell.

86. I have already indicated that the mere non-compliance with BS does not necessarily mean that the access/egress was unsafe.  How PW1 came to meet the accident is not irrelevant here.  The version he gave in court, which was re-confirmed after he refuted the version he gave in his statement, was that at the time when he lost balance, he was not maintaining a “three-point contact” as both his left hand and his left foot were not in contact with anything.  It is unclear whether PW1 wishes to put across the notion that the configuration of the ladder was such that it was not possible for him to maintain a “three-point contact”.  If that was the case, this aspect was not clarified and contradicts the version in his statement. 

87. PW1’s evidence in court was that, in effect, he was maintaining a “two-point contact” (ie with only his right hand holding the conduits and his right foot on the floor of the basement). There was no challenge to DW1’s evidence that it is easier for one to slip when keeping a “two-point contact”, which also accords with common sense. 

88. As PW1 clearly understood what a “three-point contact” was, it was not necessary for DW1 to give his opinion that PW1 should have received proper training regarding the safe-use of a ladder when he was issued a “Green Card”.  It is certainly not necessary for the Magistrate to consider whether PW1 has received such proper training.  

89. As indicated earlier, it has never been the defence case that the statutory duty imposed under Regulation 38A made under FIUO was delegated to the workers using the ladder and the access/egress.  The defence case was that a suitable and adequate safe access/egress was provided by the contractor.  It was the way PW1 used the ladder which caused the accident, not the safety of the ladder and the access/egress. 

90. In my view, the way the Magistrate dealt with the issue was such that she had not properly evaluated all the evidence in considering whether the prosecution has succeeded in proving that the access/egress was unsafe.  All those suggestions made by PW4 would no doubt make the access/egress “safer”, but that does not necessarily mean that the original access/egress was unsafe.   There was insufficient finding of the primary facts to support the Magistrate’s conclusion that the access/egress was not a suitable and adequate safe one. 

91. Further, it is also illogical for the Magistrate to find that the access/egress was unsafe as it failed to comply fully with the specifications under BS, and yet the “improvement” made at the suggestion of LD does not fully comply with BS either. 

92. For these reasons, the finding that the access/egress was not a suitable and adequate safe one was flawed and cannot be affirmed on appeal. 

93. In coming to my decision, I have also considered whether the access/egress was unsafe due to the lack of any safety measures – bearing in mind the risk of a worker falling from height when using the ladder, whether due to inattention, carelessness or fatigue.  

94. In this regard, Section (III) of the Guidebook stipulated that for ladders at a height of 3 metres or more, safety hoops should have to be installed.  On the face of it, this stipulation does not apply as the top rung of the ladder was 2.78 metres above the floor of the pump room.  However, if one takes into account the floor of the basement and treated that as being effectively the top of the ladder, the ladder would then have been over 3 metres high and arguably safety hoops should have been provided.  

95. DW1 has explained in evidence how the beams on three sides already acted as some kind of safety cage to restrict the range of one’s fall as a worker could lean his body against the beam for support.  

96. PW4 did not agree with DW1’s views, but that was mainly because the size of the opening (1 metre x 1 metre) was bigger than the size of 650 mm to 800 mm stipulated under BS. PW4 was also of the view that the safety cage should be one with rungs and not a “sealed enclosure”.[29] 

97. Again, the Magistrate simply adopted PW4’s opinion that there should have been a safety cage constructed in accordance with BS. 

98. Assuming, for argument’s sake, that the access/egress provided was not a suitable and adequate safe one due to the lack of safety measures, the appellant could rely on s 18 of FIUO to show, on a balance of probabilities, that it was not practicable or reasonably practicable to provide safety measures.  

99. The defence relied on the evidence of PW2.  PW2’s evidence was that the “improvement” advised by LD would have made the transportation of large equipment “more difficult”.  PW2 testified that pipes as big as those seen on the floor of the pump room (as seen in Photo A of the album Exhibit P2 but un-assembled) were still being transported through the opening.[30]  There was no attempt to ask PW2 to explain how “more difficult” it would have been to do so. 

100. As the burden of showing the “impracticality” lies on the defendant, albeit on a balance of probabilities, it might be argued that the evidence adduced via PW2 may not be enough for the defence to discharge such a burden.  

101. This brings on Ground 3 of the Grounds of appeal.  

GROUND 3

102. To recap, the complaint was that the Magistrate wrongly applied the legal test of “impossibility” when considering the application of the words “so far as is reasonably practicable” contained in s 38A of the regulations made under FIUO.  

103. What the Magistrate said was this[31]:

“It was pointed out … the installation of the safety cage would only make it more difficult to deliver the materials required but would not make the delivery impossible …” [My Emphasis]

104. The use of the expression “impossible” in this context does raise the possibility that the magistrate was equating impracticability with impossibility, which clearly is a wrong test. 

105. As there was insufficient finding of the primary facts to support the Magistrate’s conclusion that the access/egress was unsafe, and that the Magistrate had apparently applied the wrong test in considering the question of “impracticability”, the conviction is unsafe and unsatisfactory and I allow the appeal.  

GROUND 4

106. Strictly speaking, it is not necessary for me to consider whether the common law defence of honest and reasonable belief (“common law defence”) would have been open to the appellant in this case.  For the sake of completeness, I will also give my views.  

107. The leading authority on this issue is Hin Lin Yee v HKSAR[32].  The key question is whether the statutory defence, properly construed, is inconsistent with the availability of the common law defence.  If so, only the statutory defence can be relied on.  

108. A statutory defence can exclude, by implication, the more general common law defence (see for example the “young man’s defence” provided under section 6(1) of the Sexual Offences Act 1956 as illustrated in Hin Lin Yee (at paras 165-166)):

“165. On the other hand, as Lord Steyn points out, s 6 of the Sexual Offences Act 1956 provides an example of legislation where the statutory defence does exclude by necessary implication any more general defence of honest and reasonable belief. Thus, by s 6(1) it is an offence for a man to have unlawful sexual intercourse with a girl under the age of 16. But s 6(3) – the ‘young man’s defence’ – provides:

‘A man is not guilty of an offence under this section because he has unlawful sexual intercourse with a girl under the age of sixteen, if he is under the age of twenty-four and has not previously been charged with a like offence, and he believes her to be of the age of sixteen or over and has reasonable cause for the belief.’

166.  The italicised words overlap the common law defence.  The legislature was necessarily implying that it is not enough for an accused simply to say that he honestly and reasonably believed that the girl was over 16.  He has additionally to show that he was under 24 at the time.  The common law defence is excluded in favour of a statutory defence which imposes further requirements.” 

109. Having construed the general statutory defence provided under s 18 of FIUO, whilst it cannot be said that the defence provided therein is inconsistent with the common law defence, I am of the view that the s 18 defence has, by necessarily implication, excluded the common law defence.  

110. The statutory defence provided under s 18 is wider, and required more, than the common law defence.  The onus is on a contractor responsible for a construction site to prove, albeit on a balance of probabilities, that he has “taken all reasonable steps, or practicable steps or done the appropriate thing to satisfy the duty or requirement”.  This defencerequires more than “an honest and reasonable belief”.  It requires actual steps taken or appropriate thing done.  

111. In this regard, I agree with the judgment of Judge Chan in the China Road And Bridge Corporation case (see paras 21 to 23 of the original judgment in Chinese). 

112. In any event, this appeal does not turn on whether the common law defence was available to the appellant.

CONCLUSION

113.    The appeal against conviction is allowed.  Both the conviction and the fine imposed are quashed.  

[1]  Appeal Bundle, page 287 N

[2]  Appeal Bundle, page 306 B–G

[3]  Statement of Findings, para 18

[4]  Statement of Findings, para 28

[5]  Statement of Findings, para 30

[6]  Statement of Findings, para 32

[7]  Statement of Findings, para 33

[8]  HKSAR v China Road And Bridge Corporation & Ors, unreported, HCMA 192/2010

[9]  HKSAR v Shun Tak Properties Ltd [2009] 3 HKLRD 299

[10]  Appeal Bundle, page 426 I–O

[11]  HKSAR v Lam Geotechnics Ltd [2000] 4 HKC 367

[12]  Utah Construction & Engineering Property Ltd and Anor v Janos Pataky [1966] AC 629

[13]  Baker v Quantum Clothing Group Ltd and other companies [2011] 4 All ER 223

[14]  Trott v W.E. Smith (Erectors) Ltd [1957] 1 WLR 1154

[15]  Statement of Findings, para 21

[16]  Statement of Findings, para 25

[17]  Statement of Findings, para 27–28

[18]  Appeal Bundle, page 409 C–J

[19]  Appeal Bundle, page 411 P – 412 D

[20]  Appeal Bundle, page 333 D, 337 Q – 338 E

[21]  Appeal Bundle, page 352 M–O

[22]  Appeal Bundle, page 246 Q – 247 H

[23]  Appeal Bundle, page 269 J–M

[24]  Appeal Bundle, page 270 P – 271 F

[25]  Appeal Bundle, page 272 O

[26]  Appeal Bundle, page 273 B–E

[27]  Appeal Bundle, page 271 S

[28]  Appeal Bundle, page 273 H–J

[29]  Appeal Bundle, page 347 G–O

[30]  Appeal Bundle, page 295 C–F

[31]  Statement of Findings, para 32

[32]  Hin Lin Yee v HKSAR (2010) 13 HKCFAR 142