HKSAR v. GAMMON CONSTRUCTION LTD

HCMA 97/2019

[2020] HKCA 752

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MAGISTRACY APPEAL NO 97 OF 2019

(ON APPEAL FROM WKS NOS 802-804 OF 2016)

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J U D G M E N T

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The Court:

A.  Introduction

1.  On 23 January 2019, after a trial in the West Kowloon magistrates’ court which had lasted 21 days, the appellant was found guilty by then deputy magistrate Lau Suk Han (“the magistrate”) of three summonses, which may be summarised as follows:

(i)  Failing to provide and maintain a safe system of work, contrary to sections 6A(1), (2)(a), (3) and 13(1) of the Factories and Industrial Undertakings Ordinance, Cap 59 (“the Ordinance”)[1];

(ii)  Failing to provide necessary instruction and supervision for the health and safety at work of persons employed at an industrial undertaking, contrary to sections 6A(1), (2)(c), (3) and 13(1) of the Ordinance[2]; and

(iii)  Failing to develop, implement and maintain a safety management system, contrary to sections 8(1) and 34(2) of the Factories and Industrial Undertakings (Safety Management) Regulation, Cap 59AF (“the Regulation”)[3].

On the same day, the magistrate fined the appellant $55,000 in respect of (i); $50,000 in respect of (ii); and $30,000 in respect of (iii) above.

2.  By a notice of appeal (Form 101) filed on 31 January 2019, the appellant appealed against conviction only.  Although the hearing of the appeal had initially been fixed for 21 and 22 February 2020 before D’Almada Remedios J in the Court of First Instance, a Notice of Motion was filed on behalf of the appellant on 17 June 2019, by which the appellant sought to have the appeal heard by the Court of Appeal.  That application was opposed by the respondent.  D’Almada Remedios J subsequently ordered an expedited hearing of the matter on 11 December 2019, at which she acceded to the appellant’s application and, instead of reserving a particular point for the Court of Appeal, reserved the whole appeal to this Court under section 118(1)(d) of the Magistrates Ordinance, Cap 227[4] (“the MO”).

3.  At the same time, D’Almada Remedios J also granted leave to enable the appellant to adduce fresh evidence on appeal[5], namely, the Legislative Council Brief EMB 16/2961/46XI, dated 12 January 1989, on the Factories and Industrial Undertakings (Amendment) Bill (“the Bill”), since it might shed light on the legislative intent of the first and second offences and was relevant to the arguments in Grounds 1 and 2 (below).  In the Bill, it was stated that:

“The purpose of the Factories and Industrial Undertakings Ordinance is to promote industrial safety and health and prevent industrial accidents. Subsidiary regulations provide for specific industries or operations. Because of rapid technological change the regulations quickly become out of date and inappropriate to the actual current situation in industry. It is therefore necessary to impose on proprietors a general duty to provide a safe and healthy working environment; and to require employees to cooperate in providing such an environment and to take reasonable care at work. On the other hand, the deterrent effect of existing penalties has been found to be inadequate[6].

It is therefore necessary to introduce custodial penalties for serious offences.[7]”

B.  The relevant provisions in the Ordinance and the Regulation

4.  We shall first set out the relevant provisions which fall for consideration in this appeal.  Section 6A of the Ordinance, which is headed “General duties of a proprietor”, provides that:

“(1) It shall be the duty of every proprietor of an industrial undertaking to ensure, so far as is reasonably practicable, the health and safety at work of all persons employed by him at the industrial undertaking.

(2) Without prejudice to the generality of a proprietor’s duty under subsection (1), the matters to which that duty extends include in particular—

(a) the provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health;

(b) …

(c) the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of all persons employed by him at the industrial undertaking;

(d)–(e) …

(3) Subject to subsection (4), a proprietor of an industrial undertaking who contravenes this section commits an offence and is liable to a fine of $500,000.

(4) A proprietor of an industrial undertaking who contravenes this section wilfully and without reasonable excuse commits an offence and is liable to a fine of $500,000 and to imprisonment for 6 months.”

5.  Section 13 of the Ordinance, which is headed “Liability for proprietor”, provides that:

“(1) Except as may be otherwise provided by regulations made under this Ordinance, the proprietor of every industrial undertaking in or in respect of which any offence against this Ordinance has been committed shall be guilty of a like offence, and shall be liable to the penalty prescribed for such offence.

(2)-(3)  …”

6.  Section 18 of the Ordinance, which is headed “Onus of proving limits of what is practicable, etc”, provides:

“(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, not 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.

(2) In a proceeding for an offence under a provision in this Ordinance consisting of an exemption from compliance with a duty or requirement to do something where it is impracticable, not reasonably practicable or rendered impracticable to comply with that duty or requirement, the onus is on the accused to prove that it was impracticable or not reasonably practicable to do more than was in fact done to comply with the duty or requirement.

(3) Subsections (1) and (2) do not apply where the offence is committed on or before the commencement of this section.”

7.  Sections 8(1) and 34(2) of the Regulation, headed “Duty of proprietor and contractor to develop, etc. safety management system” and “Offences”, respectively provides that:

“A proprietor or contractor specified in Part 1 of Schedule 3 shall develop, implement and maintain in respect of the relevant industrial undertaking a safety management system which contains the elements specified in Schedule 4.” [Section 8(1) of the Regulation]

“Any person who contravenes any of the provisions of section 8, … or … commits an offence and is liable on conviction to a fine of $200,000 and to imprisonment for 6 months.” [Section 34(2) of the Regulation]

C.  The facts of the case

8.  The summonses concerned a fatal industrial accident, which occurred on the morning of 23 April 2016.  The appellant was the principal contractor responsible for the construction of the dual two-lane viaduct section of the Tuen Mun – Chek Lap Kok Link.  The viaduct was constructed over the sea, and was approximately 1.6 kilometres long between the Hong Kong – Zhuhai – Macao Bridge and the North Lantau Highway[8]. 

9.  The construction of the bridge consisted of the assembly of pre-cast segments which were connected piece by piece in sequence. Each segment was identified by a number, and was hollow inside, which was called a “segment void”.  The edge of the segment void closer to the sea was called the “segment edge”.  The segments were connected by temporary post-tensioning (TPT) bars, permanent post-tensioning tendons and glued together with epoxy resin[9]. The appellant had subcontracted to Freyssinet Hong Kong Limited[10] the erection of the pre-cast segments and the pre-stressing work at Pier E1B.

10.  It was the prosecution case that at around 10:30 am on 23 April 2016, a male worker from Thailand, (“the deceased”), who was engaged by the subcontractor, was working at the edge of one of the hollow segments at Pier E1B, namely Segment 5, which was also known as an “N Segment”[11]. Segment 5 abutted Segment 4, which was also known as an “N-1 Segment”.  The new segment, which had not yet been erected, was known as an “N+1 Segment”.  In preparation for connecting the two segments, it was necessary to remove the washer plates and nuts from the top TPT bars of Segment 5. 

11.  A metal fence had been erected at the edge of the segment void by the night-shift foreman of the subcontractor, PW2, at around 10 to 11 pm on 22 April 2016, when Segment 5 was still on the barge.  He checked the stability of the erected metal fence only by physically shaking it[12]. The metal fence consisted of two vertical bars, the bottom end being inserted into a hole or recess of the floor of the segment void, and the top end being secured by a metal plate, which was tightened by a screw jack to hold it in position[13]. The vertical bars were loose within the hole or recess of the floor of the segment void in which they were inserted[14]. A green mesh covered the metal fence.  Photographs of the metal fence before and after the accident were depicted in exhibit P8A, photographs 1-7, 21, 31 and 33.

12.  It was alleged that the deceased was standing on a working platform (exhibit P8A, photograph 28) and leaning on the metal fence near the edge of the segment void to remove the washer plates and nuts of the top TPT bars located at the external face of Segment 5 (exhibit P8A, photographs 9, 30 and 33)[15]. The deceased was wearing a safety harness and an inflatable lifejacket, and had attached the lanyard of his safety harness to the metal fence.  The metal fence suddenly detached from the segment and he fell into the sea together with the metal fence[16]. Although, he was wearing a lifejacket, he eventually sank due to the weight of the metal fence and drowned[17].

13.  A photograph taken soon after the accident of the segment void showed that two working platforms were placed at the edge of the segment, and a set of washer plates and nuts had been removed from one of the top TPT bars (exhibit P8A, photograph 32).  The recovered metal fence showed that the deceased’s safety harness was attached to the top horizontal metal pole of the metal fence, nearest to where the set of washer plates and nuts had been removed (exhibit P8A, photograph 25).    

D.  The prosecution allegations

14.  The prosecution alleged that the appellant had breached its statutory duties through its omissions to act in the following respects:

(a)  Failing to set out safe procedures for the subject work in the Method Statement (“MS”), provided by the sub-contractor (see Issues 3[18] and 11 below). 

(b)  Failing to take adequate steps to ensure that the metal fence had sufficient strength and stability to withstand the pull-out force applied to it when the deceased was carrying out the work[19] (see Issue 11 below)[20].

(c)  Failing to install a lifeline in the segment as an anchorage into which a safety harness could be hooked (see Issue 11 below).

(d)  Failing to ensure that specific instructions relating to the subject work were given to the deceased and effectively given in his own language[21] (see Issue 9 below).

(e)  Failing to develop, implement and maintain a safety management system since there were systemic failures in the in-house safety rules (which did not provide instructions for achieving safety management objectives), and in the inspection programmes specifically for the fencing (which did not identity hazardous conditions or provide rectifications thereof)[22].

E.  The defence case

15.  The defence contended that whilst it had adduced sufficient evidence to discharge its onus of proof under section 18 of the Ordinance, the prosecution had failed to successfully prove its case.

16.  In response to the prosecution’s allegations, the defence took the following positions:

(a)  The subject work was simple and therefore did not require any related procedures to be laid down in writing[23].

(b)  The fencing was not part of a safe system of work[24]. On the contrary, the system of work in place, to which the deceased did not adhere, was that the subject work should only be done when there was a stressing platform at the edge of the segment or in the presence of an N+1 Segment[25].

(c)  There was no statutory requirement to install a lifeline[26], which was in any event provided to workers for their own installation before commencing the subject work[27].

(d)  The deceased had received training on “working at height”[28] but nevertheless carried out the subject work on his own whim[29], or without the employer’s instructions[30].

(e)  The appellant could not be regarded as breaching its duties for failing to act as a “nanny” to the deceased[31].

17.  The defence called two witnesses as part of its case: DW1, the project manager of the sub-contractor; and DW2, an expert witness who testified on issues relating to occupational safety and health in the context of safety management.

F.  The magistrate’s Statement of Findings

18.  In her Statement of Findings[32], the magistrate identified no less than 15 issues which she enumerated at the outset. Accordingly, her findings were summarised according to the issues she identified (with slight modifications).

Issues	The magistrate’s findings
Issue 1:  Is the common law defence available to a breach of the section 6A duties?	No. Section 18 is the only statutory defence. The magistrate followed HKSAR v China Road and Bridge Corporation & Ors[33].
Issue 2: Do sections 8(1) and 34(2) of the Regulation create absolute liability?	Yes. The offence falls within the fifth Kulemesin alternative.
Issue 3: What is the relevance of the installation procedures of the top TPT bars being different from those in the MS?	It had no bearing on the work safety and health of the deceased.
Issue 4: Did the prosecution unfairly change its case?	To a limited extent only.  No weight was accordingly attached to the evidence relating to the risk of the deceased drowning and an entire segment falling into the sea.
Issue 5: Are the prosecution witnesses honest and reliable, and to what extent?	The magistrate accepted the evidence of all prosecution witnesses, save that: (i)     She rejected the evidence of PW6 that there was a checklist for the subject work, since it was contrary to the evidence of PW1, PW10 and PW11[34] which she accepted[35].   (ii)   She rejected PW10’s evidence that the workers would on their own initiative carry out the subject work in the presence of a stressing platform, and without telling Phichai[36].
Issue 6: Should the expert evidence of PW14 and PW15 (on the issue whether the metal fence was safe) be accepted?	The magistrate attached no weight to PW14’s evidence as to the degree of tilting of the vertical poles and the friction force between the metal plates of the vertical poles and the ceiling, because it was based on the presumption that the measurements of the metal fence were the same before it fell and after it had been salvaged[37].  Inasmuch as PW15’s evidence was based upon PW14’s opinion, she did not accept it.  However, she found that PW15’s opinion was based on common sense, and therefore did not need his testimony to assist her in understanding the relevant issues[38].
Issue 7: Should the evidence of two defence witnesses be accepted?	Whilst accepting the evidence of DW1, the magistrate rejected DW2’s evidence on the basis that his opinion was illogical and not impartial[39], and in particular rejected his opinion that the subject work was a simple task without the need of safety rules[40].
Issue 8: Was the deceased engaged in the subject work immediately before his fall?	Yes. Although no factual witnesses gave evidence on what the deceased was doing at the time, a comparison of the photographs of the edge of the segment, taken both before and after the accident, showed that the metal fence and one set of washer plates and nuts at the top left corner of the segment[41] had disappeared[42].  The magistrate also noted that the deceased’s safety harness was hooked onto the top left position of the metal fence[43].
Issue 9: Was the deceased instructed by Phichai to carry out the subject work?	Yes. The magistrate found that, whilst PW6 said he had instructed the workers (through Phichai) to move epoxy cans from the segment void to the deck level, Phichai did not translate these instructions because none of the workers moved the epoxy cans.  Instead, they were told by Phichai to do various kinds of work[44]. She further found that Phichai instructed the deceased to remove washer plates and nuts[45]. She explained that it would defy common sense to suggest that the deceased ignored the instructions given by PW6 to move the epoxy cans and on his own whim carried out the subject work[46].
Issue 10: Was a fence or a lifeline part of the system of work as alleged by the prosecution?	Yes. That explained why workers were required to install a fence or erect a lifeline before commencing the subject work[47]. The importance of a fence (as an indicator to signal a segment edge) and a lifeline (to which a safety harness can be attached) was highlighted in DW1’s evidence[48].
Issue 11: Was the prosecution case regarding a lack of safe system of work made out on the evidence?	Yes, for three principal reasons.  First, the risk of falling was reasonably foreseeable[49].  Secondly, working procedures of the subject work should have been set out in the MS because they involved highly dangerous or prolonged procedures and different workers performing different functions, and this was a large scale industrial undertaking.  Thirdly, the metal fence lacked sufficient strength and stability to prevent a human being from falling[50], and the lifeline was not tested to ensure it could function properly and withstand one’s pullout force[51].
Issue 12: Was the alleged failure to provide instructions and supervision made out on the evidence?	Yes. The magistrate found that the deceased carried out the subject work on the instructions of Phichai, and there was a failure to provide the deceased with suitable instructions and supervision[52].
Issue 13: Did the defence discharge the onus of proof in section 18?	No[53].
Issue 14: Should a system of work be reduced in writing?	Yes. The magistrate found that whilst there was no statutory requirement as such, a documented system of work provides particular means of achieving the duties required[54].
Issue 15: Was the metal fence defective?	The magistrate refused to speculate on the issue as there was no need to establish a causal relationship between the breach of duty and the injury to the worker[55].

G.  Perfected grounds of appeal

19.  By his Perfected Grounds of Appeal dated 16 May 2019, Mr Andrew Bruce SC, with him Mr Benny Lo[56], has advanced a total of seven grounds of appeal, although, strictly speaking, only the first three (Grounds 1, 2 and 3; see G.1.1-G.1.3 below) involved questions of law.  The other grounds of appeal (Grounds 4, 5, 6 and 7; see G.2.1-G.2.4 below) were concerned with challenges to the factual findings of the magistrate.  Nevertheless, as we have pointed out, the whole appeal, rather than a point in the appeal, was remitted to the Court of Appeal. 

20.  We wish to make two observations in relation to the judge’s order.  The first concerns the power of a judge to refer a magistracy appeal to the Court of Appeal.  Under section 118 of the MO, a judge may refer the appeal or a point in the appeal to this Court, which when seized of the matter can exercise all the powers conferred on the judge.  Whilst it is a matter within the discretion of the judge to make such an order, it should not be too readily invoked by the judge because the procedure must be reserved for cases of particular importance or complexity, warranting a decision of this Court.  The second concerns the making of any related orders by a judge when exercising the referral power.  Accordingly, any application to adduce fresh evidence should not be predetermined by the judge but left as a matter for this Court to decide.

G.1.1.  Grounds 1 and 2: the nature of section 18 of the Ordinance – the respective submissions of the parties

21.  The essence of Mr Bruce’s complaint is that section 18 of the Ordinance is an onus provision, which does not operate to exclude the common law defence articulated in Hin Lin Yee v HKSAR[57] and Kulemesin v HKSAR[58] (Ground 1).  Therefore, the magistrate was wrong to hold that section 18 was the only defence available to the appellant.  Having so held, the magistrate thereby erred in failing to consider whether the common law offence had been made out (Ground 2). 

22.  Mr Bruce began his submissions by contending that section 18 was limited to casting the onus of proving what is reasonably practicable upon the defence: it did not provide a defence.  He sought to derive support for this interpretation from the judgment of Gleeson NPJ, giving the judgment of the Court of Final Appeal in HKSAR v Gammon Construction Ltd[59], where he had said:

“As to s.18, it was common ground in argument in this Court that the onus there referred to is a legal onus (to be discharged on the balance of probabilities) and not merely an evidentiary onus. This, as a matter of construction of the Ordinance, is correct.”

Mr Bruce also relied on a passage from the judgment of Tang PJ in Paul Y General Contractors Ltd v HKSAR[60], to the effect that:

“…under s.18, the onus of proving what is reasonably practicable is on a defendant, and that a proprietor charged under s.13 would have the same onus”.

23.  In restricting the purpose of section 18 of the Ordinance to a mere onus-bearing provision, Mr Bruce submitted, notwithstanding what it is that the section prescribes the defendant must show in order to be acquitted, that it did not provide a defence.  In this respect, he sought to draw comfort from the statement of the English Court of Appeal in R v HTM Ltd[61] in respect of the equivalent section 40 of the Health and Safety at Work etc Act, 1974, that “the phrase ‘so far as reasonably practicable’ is not a defence”[62].  Therefore, so the appellant’s argument initially ran, the common law defence was not excluded because section 18 merely put the onus of proving that a qualified duty had not been breached.

24.  As his argument developed, however, Mr Bruce was minded to refine his position so that, even if section 18 might be construed as articulating what it was that a defendant had to prove in order to be acquitted, it did not mean that the common law defence was excluded.

25.  Mr Bruce argued that this contention was consistent with the legislative intent because the Bill was silent as to the creation of any statutory or general defence.  He also submitted that, in the absence of clear and unambiguous words restricting the available defences, both offences under sections 6A and 13 of the Ordinance (the former being the predicate offence of the latter derivate offence) should fall under the third category in Kulemesin, such that a good defence is made out if the defendant could show “on the balance of probabilities that he acted or omitted to act in the honest and reasonable belief that the circumstances or likely consequences of his conduct were such that, if true, he would not be guilty of the offence”.  This has been termed the “common law defence”.

26.  For the respondent, Mr Jonathan Man, with him Mr Paul Yip[63] and Mr Derek Lau, submitted that the prosecution were not required to prove as an element of the offence that the defendant had not done what was “reasonably practicable”.  On the contrary, it was for the defendant to establish what was a statutory defence under section 18, which was generally applicable to other offences within the Ordinance where the issue of “reasonable practicability” was engaged.  Accordingly, the construction of section 18 fell within the fourth category in Kulemesin. 

27.  Mr Man also submitted that section 18, which was modelled on section 40 of the Health and Safety at Work etc Act, 1974, in the United Kingdom, has been consistently interpreted as a statutory defence both in Hong Kong and in the United Kingdom. In this regard he referred to four Magistracy Appeals in this jurisdiction: namely, HKSAR v China Road and Bridge Corporation & Ors[64]; HKSAR v Paul Y General Contractors Ltd[65]; HKSAR v Projexasia[66]; HKSAR v WM Construction Ltd[67]; and two decisions from England and Wales, namely, R v Davies (David Janway)[68]; and R v Chargot Ltd (trading as Contract Services)[69].  

G.1.2.  Ground 3: the nature of liability imposed by sections 8(1) and 34(2) of the Regulation – the respective submissions of the parties

28.  Mr Bruce argued that the magistrate erred in finding that this charge attracted absolute liability.  He pointed to the maximum penalty for the offence, namely 6 months’ imprisonment, as well as the breadth of the offence, to submit that the offence should be one of strict liability for which the common law defence was likewise available.

29.  Mr Man, on the other hand, submitted that the section 8(1) duty was not a delegable one.  It was a stringent duty imposed for obvious reasons on contractors and proprietors of large scale construction contracts with a value of $100 million or more.  The imposition of absolute liability, in such circumstances was both necessary and justifiable.

G.1.3.  Discussion on Grounds 1, 2 and 3

30.  We shall first address Grounds 1 and 2 and the construction of section 18 of the Ordinance.  Both parties are agreed that section 18 puts the onus on a defendant of establishing his defence: where they differ is whether section 18 provides for that defence and prescribes the limits of the defence.  In neither Gammon Construction Ltd nor Paul Y General Contractors Ltd do we think the Court of Final Appeal was making the point which Mr Bruce was advocating, namely, that section 18 of the Ordinance was limited only to putting the onus of proof in respect of reasonable practicability on the defence.  Later in Gammon Construction Ltd, for example, Gleeson NPJ explained[70]:

“The onus provision in s.18 reflects the practical reality that in the ordinary case it is the proprietor who has either created or is in charge of the risk, and it is not unfair to require him to show that he could not have done more to prevent or avoid it.” (Emphasis supplied)

The italicized words are a short form of saying what it is that the defendant is tasked with showing under section 18, namely, that “it was 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 done the appropriate thing to satisfy the duty or requirement”.

31.  As for Mr Bruce’s reliance on the statement from the English Court of Appeal in HTM Ltd that the phrase “so far as reasonably practicable” in section 40 of the Health and Safety at Work etc Act, 1974, is not a defence, where section 40 is similar to section 18 of the Ordinance, we think there are difficulties in applying decisions under English law in this area to relevant Hong Kong Ordinances.  The argument in HTM Ltd concerned the interaction of secondary legislation, namely regulation 21 of the Management of Health and Safety at Work Regulations, 1999, which “would appear to be an attempt to transpose article 5(3) of (Council Directive 89/391/EEC of 12 June 1989) into domestic law”[71], with primary legislation, namely, the Health and Safety at Work etc Act, 1974. The Court had earlier observed[72]:

“A number of interesting arguments have been raised in relation to the interaction of primary and secondary legislation in such circumstances. But one uncontroversial principle clearly applies, namely the principle that secondary legislation can only have the effect of amending primary legislation, assuming all other tests are met, if the wording is clear and unambiguous and the intention to achieve that objective manifestly established.”

32.  It was against that background that the Court in HTM Ltd held that regulation 21, which provides:

“Nothing in the relevant statutory provisions shall operate so as to afford an employer a defence in any criminal proceedings for a contravention of those provisions by reason of any act or default of – (a) an employee of his …”,

had no application to section 40 of the 1974 Act, since the phrase “so far as reasonably practicable” was not a defence. 

33.  Hong Kong does not have an equivalent of regulation 21 and, as the Court in HTM Ltd itself acknowledged, “there is no doubt that, in a significant number of the judgments given in the cases to which we have referred, the effect of section 40 of the 1974 Act has resulted in judges referring to the duty under sections 2 and 3 as being subject to a defence, or a limited defence, of reasonable practicability”[73].

34.  Whether HTM Ltd is correctly decided, or whether it represents perhaps a rather strained attempt to reconcile secondary legislation introduced by way of European Directive with primary domestic legislation, the later decision of the House of Lords in Chargot Ltd seals the argument.  In the speech of Lord Hope of Craighead, with whom all other members of the Court (which, it should be noted, included two current NPJs and one future NPJ of the Court of Final Appeal) agreed, section 40 of the 1974 Act was described as a “defence”[74]:

“For these reasons I would reject Mr Lissack’s primary submission that sections 2(1) and 3(1)[75] require the prosecution to identify and prove the acts and omissions by which it is alleged that there was a breach of the duty to achieve or prevent the result that they describe. What the prosecution must prove is that the result that those provisions describe was not achieved or prevented. Once that is done a prima facie case of breach is established. The onus then passes to the defendant to make good the defence which section 40 provides on grounds of reasonable practicability.” (Emphasis supplied)

35.  With respect, nothing could be clearer and the argument as to whether section 18 of the Ordinance, like section 40 of the Act, does or does not provide a defence is, in our judgment, settled.  Moreover, such an interpretation accords with ordinary principles of construction.  For the sake of completeness, Chargot Ltd was applied by the Court of Final Appeal in Gammon Construction Ltd.

36.  Our agreement with this construction of section 18 of the Ordinance is not, however, the end of the matter.  The question remains as to whether there is any room for the common law defence or whether the appellant is confined to relying on the statutory defence provided for under section 18.  As Ribeiro PJ posed in Hin Lin Yee[76]:

“The key question is whether the statutory defence, properly construed, is inconsistent with the availability of the third alternative. If so, only the statutory defence can be relied on.”

37.  On this question, Litton NPJ took the view that[77]:

“Where a statute creates an offence, the ingredients of that offence are to be found within the four corners of the statute. And where the statute prescribes in express terms the elements of a defence to the charge -- as it does here in ss.70 and 71 of the Public Health and Municipal Services Ordinance (Cap 132) -- it leaves little room for implying the existence of a common-law defence. At the end of the day it is simply a matter of statutory construction.”

38.  Chan PJ struck a more emollient tone, whilst agreeing that it was a matter of statutory construction[78]:

“I should also mention that where a statutory defence is expressly provided in the same statute creating the offence, it is not correct to say … that as a matter of law, the common-law defence is necessarily excluded. Whether this is so depends on the construction of the statutory defence in the context of the whole statute. One must examine the scope of such statutory defence and the purpose it is aimed at serving in deciding whether it is intended that the common-law defence is replaced or excluded. Where the applicability of the common-law defence is inconsistent with the presence and the terms of the statutory defence, the necessary implication must be that the legislature intended the exclusion of the common-law defence.”

39.  In our judgment, the two limbs of the defence under section 18 of the Ordinance do not, as a matter of construction, leave room for the common law defence in the present case.  For, if a defendant must prove that it was not reasonably practicable to do more than was in fact done to satisfy the duty under section 6A, then an honest and reasonable belief that it was not reasonably practicable to do more should not excuse him.  It would defeat the important objects of the Ordinance if a defendant could plead that even if he could not prove that it was not reasonably practicable to do more, he nevertheless honestly and reasonably believed it was enough.  Similarly, if a defendant must prove that he has taken all reasonably practicable steps to satisfy the duty, what is required is more than just a belief, however honestly or reasonably held.  In either limb of the statutory defence, the availability of the common law defence would nullify what the law requires by this offence.

40.  A similar analysis was respectfully adopted by Deputy Judge Chan (as he then was) in China Road and Bridge Corporation & Ors, which was also concerned with the question of whether the statutory defence under section 18 of the Ordinance could accommodate the common law defence.  There, the court held that the first limb of section 18 overlapped with the common law defence, while the second limb extended beyond it.  Accordingly, the common law defence was neither available nor applicable[79].

41.  We conclude that section 18 of the Ordinance provides that the onus was upon the appellant to establish his defence as stipulated.  The presumption of mens rea has been displaced by section 18 and the appellant could only rely on the statutory defence expressly provided for in one of two specified ways.  Furthermore, the statutory defence was not consistent with the common law defence.  Accordingly, the mental state applicable came within the fourth category in Kulemesin.  The magistrate was accordingly correct in her assessment.

42.  We turn to Ground 3.  It will immediately be noticed that section 18 of the Ordinance does not apply to an offence contrary to section 8 of the Regulation, nor are there any words in sections 8(1) or 34(2) of the Regulation qualifying the duty on the contractor, such as to take all necessary, reasonable, practicable or reasonably practicable steps to satisfy the duty.  Nor are there any words in either section connoting knowledge or intent.  We note by contrast, however, that sections 34(5) and 34(6) do provide a defence of reasonable excuse. 

43.  In considering situations where absolute liability may be imposed, Ribeiro PJ in Hin Lin Yee cited two examples, the first of which is not relevant for present purposes.  However, Ribeiro PJ went on, in a passage which was also cited by the magistrate in the present case, to explain[80]:

“A second class of cases where absolute liability may have a justifiable utility involves the statutory imposition of a duty on a person (which may be a corporate body) whether conduct or task which is the subject of the duty is in practice likely to be carried out by someone else, such as an employee or a contractor. Such situations are commonplace in factories and other workplaces where the legislation places the duty on the owner of the enterprise or the employer concerned. For convenience I shall simply speak of “the employer”.

To construe the offence-creating provision in such a situation as requiring proof of mens rea may make little sense.  The job having been assigned to an employee or contracted out, the employer may truthfully know nothing about the conduct and circumstances constituting the breach.  The intermediate defence may not be enough to secure the statutory purpose.  The employer may plausibly say that he took all reasonable care to entrust the task to a competent employee or specialist contractor and honestly and reasonably believed that the duty was being properly discharged.

The justifiable effect of imposing absolute liability in such cases is that it makes it insufficient for the employer passively to assert an honest and reasonable belief.  It promotes proactive management and diligent supervision on his part to see that the duty is in fact being properly discharged.  If the employer knows that he will be held to account, even without actual fault on his part, if his contractor or employee is slack or careless or incompetent on the job, he has every incentive to make sure that the job is properly done and to replace contractors or employees who are not up to the task.” (Emphasis supplied)

44.  It is to be noted that the italicised passage above was cited in the judgment of Tang PJ in Paul Y General Construction Ltd, with whose judgment all other members of the Court agreed, as justifying the imposition of strict liability, as distinct from absolute liability, in respect of section 13 of the Ordinance against the proprietor of an industrial undertaking, when charged in conjunction with section 6A of the Ordinance[81].

45.  As Mr Man has also pointed out, the provisions of section 8 of the Regulation only apply to specified proprietors and contractors, in the case of section 8(1) to those specified in Part I of Schedule 3 of the Regulation; in particular, contractors having an aggregate of 100 or more workers in a day working in a single construction site, in respect of construction work with a contract value of $100 million or more.  We agree that the imposition of absolute liability is justified for the statutory purpose of imposing a stringent duty on contractors to ensure the safety of all personnel at such large scale industrial undertakings. 

46.  Although the penalty provision in section 34(2) of the Regulation prescribes a maximum sentence of $200,000 and 6 months’ imprisonment for breach of any of the provisions of section 8, a sentence of imprisonment for a purely regulatory offence does not mean of itself that liability cannot be strict or absolute.  The strict liability offence under section 54(1) of the Public Health and Municipal Services Ordinance, Cap 132 in Hin Lin Yee was purely regulatory but also carried a maximum sentence of 6 months’ imprisonment[82]. As the magistrate held, a section 8 offence under the Regulation carries comparatively less social obloquy or stigma and is most commonly committed by a corporate body[83].

47.  In our judgment, the magistrate was correct to find as a matter of construction as well as legislative intent that an offence under section 8(1) of the Regulation was one of absolute liability and came within the fifth category of Kulemesin.  Accordingly, the common law defence did not apply.

48.  For the above reasons, we reject Grounds 1, 2 and 3 of the appeal.

49.  We turn to deal with the remaining grounds of appeal, which essentially consist of the appellant rearguing its case at trial and complaining about the magistrate’s assessment of the evidence and findings of fact.

G.2.1.  Ground 4: improper substitution of the opinion after rejection of expert evidence

50.  Mr Bruce’s complaint is that the magistrate, having rejected the expert opinion evidence, improperly substituted her own opinion on matters relating to structural engineering, occupational health and safety, and safety management system.

51.  It is argued that the magistrate in her Statement of Findings expressed her own opinions in fields she was not an expert, and by doing so, deprived the parties of the opportunity to test such opinions.  A litany of rules and requirements in relation to an expert giving evidence in criminal proceedings are set out in the appellant’s submissions as if they apply to the magistrate in her evaluation of the evidence and findings of fact.  We find that this submission is misconceived, and fails to distinguish between the role of an expert witness and a tribunal of fact.

52.  The magistrate analysed the expert evidence submitted by the prosecution of Mr Lo Gon Fai (PW14), and Mr Mo Wing Hung (PW15), and held that she did not need to rely on their expert opinions[84]. She also referred to the evidence of the defence expert, Dr Wong Yum Yiu (DW2), whose expertise was in the area of occupational health and safety, and safety management.  She did not accept his evidence because it was illogical and not impartial. 

53.  The opinion of expert witnesses is normally admissible when a tribunal of fact would be assisted by their special knowledge and skill. The magistrate made it abundantly clear that she did not need the assistance of expert opinion because she was able to decide the issues on the evidence presented to her, and when necessary, by applying common sense[85]. 

54.  This complaint completely ignores the fact that a number of witnesses gave evidence in relation to the system of work and the safety requirements of the workplace[86]. Also in evidence were various guidance notes and instruction manuals and a series of photographs taken before and after the accident that depicted the subject site from which witnesses identified the structures and equipment, explaining the subject work[87].

55.  It was quite apparent from the magistrate’s Statement of Findings that she had a complete understanding of the subject matter before her and had no difficulty in evaluating the evidence and deciding the issues.

56.  Nonetheless, Mr Bruce advanced four instances in which he contended that the magistrate expressed her own expert opinion on the matters in question.  They are as follows.

57.  First, it is complained that the magistrate opined that the metal fence was secured only by friction force between the metal plate of the screw jack and the ceiling[88]. Prior to making this finding, the magistrate had analysed the evidence on the subject of the metal fence, including the testimony of PW2, who had erected the metal fence the night before the accident.  He had testified that the security of the vertical bars of the metal fence depended on how well the metal plate came into contact with the ceiling.  He explained that the other end of the vertical bars were inserted into the hole or recess of the floor of the segment void without any means to prevent them from dislodging.  There was also the evidence of other witnesses as to the structure and framework of the metal fence as well as the photographs, which we have already mentioned.  In the circumstances,  the magistrate was simply highlighting how the metal plate of the screw jack was secured to the ceiling of the segment void[89]. 

58.  Secondly, it is complained that the magistrate opined that there was no certainty that the metal fence could withstand the force of a human being falling, such that it could not prevent workers from falling from the segment edge.  What the magistrate concluded, after discussing the evidence was that there was no certainty that the metal fence had “sufficient strength and stability” to prevent a worker from falling[90].  PW2 testified that the only thing that he had done to check that the metal fence had been properly erected was by physically shaking it.  This was by no means a proper way, on any view, to assess the strength and stability of the metal fence for the purpose for which it was erected.  The safety officer of the appellant, PW5, explained that when he did his daily inspection he would only visually inspect the metal fence without touching it.  In the circumstances, the magistrate cannot be criticised for her analysis of the evidence and the finding she made on this issue[91].

59.  Thirdly, it is complained that the magistrate opined that no adequate steps were taken to ensure that the metal fence had sufficient strength and stability to withstand the force of a human being falling.  It was acknowledged by various witnesses, including PW5[92], that the metal fence was to protect workers from falling.  In light of the evidence, it was open to the magistrate to make such a finding[93].

60.  Fourthly, it is complained that the magistrate opined that the manner of inspections carried out by the relevant witnesses on an erected metal fence were insufficient and could not safely confirm whether the metal fence could serve its purpose[94]. As already noted from the evidence of PW2 and PW5, it cannot be said that it was not open to the magistrate to make such a finding, or that she was plainly wrong to do so.

61.  These four matters were findings of fact by the magistrate which she was entitled to make on the evidence before her.  This ground is without merit or substance.

G.2.2.  Ground 5: unwarranted findings of fact

62.  Mr Bruce submitted that the magistrate erred in making the following unwarranted findings of fact.  It is a little difficult to understand what is meant by “unwarranted” findings of fact when it is quite apparent that the matters referred to by Mr Bruce were well within the purview of the case the magistrate was required to decide.

63.  The first finding is that the lifeline needed to be tested after its installation[95]. Mr Bruce referred to the evidence for the installation of lifelines under supervision. It was implicit in the Guidance Notes on Classification and Use of Safety Belts and their Anchorage Systems[96] how safety belts should be used and the minimum level of pull-out force required.  The magistrate found that tests of a lifeline were necessary to ensure it functioned properly, and it seems that this was an appropriate consideration in relation to the overall safety of the workplace[97]. 

64.  The second finding is that the workers were left to devise their own system of work for the removal of the washer plates and nuts[98]. As pointed out by Mr Man, it was not in dispute that the actual procedure adopted for stressing and de-stressing of the TPT bars was different from that required in the MS, although the procedure had been updated.  The workers were not told how they could reach the washer plates and nuts at a high place, and therefore they had to decide amongst themselves how they would carry out this task[99].  The magistrate was not wrong to find that in this regard the workers were left to devise their own system of work.

65.  The third finding is that the workers were susceptible to the risk of falling from the segment edge when carrying out the work of removing the washer plates and nuts in the presence of a stressing platform.  The complaint is that the magistrate did not explain how a worker could fall from the segment edge when a stressing platform was present.  This is where common sense prevails.  The magistrate explained why she considered that the metal fence and lifeline form part of a safety system of work. The magistrate was evaluating the proposition that a stressing platform could eliminate all risk of falling from the segment edge.  She rightly observed that the requirement that workers used a safety harness and lifeline was because there was a risk of them falling, particularly into the sea[100].

66.  The fourth finding is that moving of epoxy cans from the segment void was the only task that the site engineer of the subcontractor, PW6, instructed the Thai workers to do on the day of the accident[101]. It is submitted by Mr Bruce that PW6 instructed the workers to perform housekeeping work which included moving of the epoxy cans.  The defence argued that this housekeeping work did not require work to be done near the segment edge, which was evident by the fact that PW1, PW10 and PW11 were performing tasks inside the segment void.  He also complained that it was wrong for the magistrate to find that Phichai did not translate the instructions of PW6 accurately.  However, this ignores the fact that PW6’s evidence contrasted with the evidence of PW1, PW10 and PW11 as to the instructions that were translated to them by Phichai.  The magistrate described PW6’s evidence that because an N+1 Segment was due to arrive on the morning of the accident, only housekeeping matters were to be done, which included instructing the workers to move the epoxy cans from the segment void to the deck level.  She found that Phichai did not translate those instructions to the workers, and more specifically that he instructed the deceased to remove the washer plates and nuts[102].

67.  PW6 testified that the tasks that day were housekeeping[103] or tidying up the workplace[104].  He said “specifically there were some boxes of glue to be removed.”  He added this was part of the housekeeping[105].

68.  We fail to see any significance in this matter. The point made by the magistrate, correctly in our view, was that Phichai instructed the workers to do tasks that differed from PW6’s instructions.

69.  The fifth finding is that the deceased was performing work and removing washer plates and nuts immediately before he fell[106].  It is complained that there was no direct evidence of what the deceased was doing before he fell.  However, as discussed by the magistrate, the only reasonable inference that could be drawn from the evidence was that he was performing this task.  We have no hesitation in concluding that it was open to the magistrate to draw such an inference from the facts found by her[107].

70.  The evidence pointed inexorably to the deceased performing the subject work.  This was highlighted by the fact that a set of washer plates and nuts had been removed from the segment as seen in exhibit P8A, photograph 32, and the deceased’s safety harness was hooked on the metal fence near the position where the washer plates and nuts had been removed as seen in exhibit P8A, photograph 25.

71.  The sixth finding is that the deceased carried out the work of removing washer plates and nuts upon instructions of managerial personnel of the subcontractor[108]. It is complained by Mr Bruce that the instructions conveyed to the deceased were from low level staff and not by managerial personnel as found by the magistrate. This is yet another relatively minor matter, which highlights the level of superficiality that has been employed in argument in support of this ground. It was not in dispute that Phichai was a superintendent, who supervised the tasks of the group of workers performed under a foreman.  The magistrate was right to consider that, given Phichai’s position and duties, he was a member of the managerial personnel of the subcontractor. 

72.  The seventh finding is that there was a failure to provide necessary supervision and instructions[109].  It was open to the magistrate to come to this conclusion based on her analysis of the evidence. She concluded that Phichai, in his capacity as a member of the managerial personnel of subcontractor, gave instructions to the workers, particularly to the deceased to remove the washer plates and nuts.  It was not a simple task as claimed.  It required appropriate instructions and supervision because there was a risk of a worker falling into the sea by working at the edge of the segment void[110].

73.  This ground of appeal fails.

G.2.3.  Ground 6: drawing impermissible inferences

74.  Mr Bruce complained that the magistrate drew inferences which were (i) not grounded by primary facts; (ii) not derived from a logical consequence based on primary facts; and (iii) not the only reasonable inference that could be drawn on the basis of the primary facts.  This appears to be another attempt by the appellant to question the magistrate’s findings which had already been dealt with in Ground 5.  In fact, the appellant relied on the same arguments that were advanced under Grounds 4 and 5 to make good its complaint under this ground.

75.  Inferences drawn by the magistrate which are the subject of this complaint concerned the following. 

76.  The first concerns the finding that at the time of the accident the deceased was removing the washer plates and nuts.  Mr Bruce repeats that the magistrate was wrong to make such a finding.  We find this to be an extraordinary submission.  The deceased would normally perform the task, amongst others, of removing the washer plates and nuts.  At the time of the accident, he had his lifejacket on and his safety harness connected to the metal fence.  There were photographs taken of the segment before and after the accident which revealed that a set of washer plates and nuts had been removed. It was clearly open to the magistrate to make this finding in light of the evidence.

77.  The second concerns the finding that Phichai did not accurately translate PW6’s instructions.  Mr Bruce again repeats that the magistrate was wrong to have found that Phichai had given his own instructions to carry out various tasks on the day of the accident.  The magistrate carried out a very simple and perfectly proper exercise in her analysis of the evidence.  She referred to the evidence of PW6 as to the instructions he gave to Phichai, which she compared to the evidence of the workers as to the instructions they received from Phichai.  She rightly concluded, in our view, that the instructions given by Phichai to the workers were different from the instructions he received from PW6.

78.  The third concerns the finding that Phichai instructed the deceased to remove the washer plates and the nuts.  Mr Bruce contends that this finding by the magistrate was premised on her incorrect findings of fact that: (i) moving epoxy cans from the segment void was the only task which PW6 had instructed the workers to do on the day of the accident; and (ii) Phichai did not accurately translate and convey PW6’s instructions to the workers and had himself instructed the workers to carry out various tasks.  This has already been dealt with and the findings of fact that have been yet again questioned by Mr Bruce were properly made in the circumstances.

79.  The fourth concerns the finding that the manner of inspection carried out could not safely confirm that the metal fence could serve its purpose.  Mr Bruce contends that, without expert evidence on structural engineering, there was no admissible evidence to establish: (i) the metal fence was secured only by friction force; (ii) the metal fence was not able to withstand the force of a human falling onto it; and (iii) physical shaking and visual inspection of the metal fence could not ensure the stability of the metal fence.  This has already been answered in Ground 5.

80.  It was open to the magistrate to make these findings and to draw these inferences based on the evidence.  This ground is without merit or substance.

G.2.4.  Ground 7: failure to give adequate reasons

81.  Mr Bruce submits that the conviction was rendered unsafe and unsatisfactory because the magistrate failed to give adequate reasons, in particular in the following four aspects of her Statement of Findings:

(1)  the absence of a written MS caused the system of work for the removal of washer plates and nuts to be an unsafe system;

(2)  workers carrying out the work of removing washer plates and nuts were susceptible to falling from the segment edge when a stressing platform was present;

(3)  no inspection programme for the work of removing washer plates and nuts; and

(4)  a systemic deficiency in inspection programmes amounts to contravention of sections 8(1) and 34(2) of the Regulation.

82.  The principles relating to the duty to give reasons were extensively addressed by the Court of Final Appeal in Oriental Daily Publisher Ltd v Commissioner for Television & Entertainment Licensing Authority[111].  Li CJ, with whom the other judges agreed, said:

“Where there is a duty to give reasons, it must be discharged by giving adequate reasons. What would amount to adequate reasons for a decision would depend on the context in which the decision maker is operating and the circumstances of the case in question.”

83.  As regards the first matter, which attracted criticism by Mr Bruce, it was the conclusion of the magistrate that the working procedures for the subject work and their risk assessment, as well as that for the preparatory work including procedures relating to installation of a stressing platform, should have been documented in the MS[112] and that such documentation was reasonably practicable[113].  On these premises, the magistrate found there was a failure to identify the risks of the subject work and no safe working procedures for the subject work had been devised[114].  It was one of the two matters on which the magistrate found there had been a failure to provide and maintain a safe system of work, namely the lack of working procedures and risk assessment of the subject work. The other matter was in relation to the fencing[115] and lifeline[116] in relation to which the magistrate found the subcontractor had not taken adequate steps.  Accordingly, she found the subcontractor committed the offence of failing to provide a safe system of work[117], while the appellant was convicted of the corresponding offence by virtue of section 13(1) of the Ordinance[118].

84.  The magistrate devoted much time in her Statement of Findings to discussing and analysing the importance of having a written MS in this regard.  The magistrate addressed the following considerations:

(1)  the subject work was not a simple task as suggested by the defence in view of its risky nature and the precautionary safety measures involved[119];

(2)  it was highly dangerous and prolonged[120];

(3)  the risk of falling was reasonably foreseeable[121];

(4)  the precautionary safety measures involved a number of men performing different functions[122]; and

(5)  the nature of the subject work as well as the scale of the industrial undertaking and the number of personnel involved on the site[123].

85.  The magistrate made the following observations[124] :

“368. As the working procedures for the subject work were not mentioned in the MS, PW10 said workers devised their own working procedures to remove the washer plates and nuts. They informed Phichai of their procedures for the subject work. His fellow workers had adopted the same procedures to carry out the subject work. Though Phichai allowed the procedures adopted by the workers, the MS was not updated to include the working procedures or associated risk assessments for the subject work.

369. In order that the safe system of work could effectively be implemented and monitored, the working procedures and their risk assessments of the subject work should have been documented, communicated to, understood and applied correctly by personnel involved.

370. Documentation can ensure that supervisors know what systems of work they should implement and maintain and that every level of personnel such as workers, supervisors and managers are all trained in the necessary skills and are fully aware of the potential risks and the precautions they need to adopt. It can also assist managerial personnel to monitor whether the safe system of work has been duly complied with.

371.   Due to the above analysis, I conclude that the prosecution has proven to the standard required that there were deficiencies in the MS.”

86.  We find no substance in this criticism.

87.  As regards the second matter, the impugned observation of the magistrate was made by her when she was considering whether there was a systemic failure in the inspection program[125].  The magistrate found that even when the subject work was carried out in the presence of a stressing platform, a worker was still susceptible to the risk of falling from the segment edge[126]. She quoted the evidence of the various witnesses, which she analyzed before she made her finding[127]. We are of the view that the finding of the magistrate was well reasoned and supported by evidence, and as she described it was the only irresistible inference to be drawn from the relevant evidence.

88.  As regards the third matter, in reaching the conclusion that there was no inspection programme for the subject work[128], the magistrate expressly said that she had taken into account the following matters :

(1)  a worker engaged in the subject work was still susceptible to the risk of falling from the segment edge even if a stressing platform was present[129];

(2)  the metal fence to be effective in preventing a fall had to withstand the force of a human being falling from a height[130];

(3)  the metal fence in question was only secured by the friction force between the metal end plate of each vertical pole and the ceiling of the segment void[131];

(4)  the purpose of the existence of the metal fence in question was unclear, as shown in the evidence of various witnesses[132];

(5)  there was more than one type of fencing to cater for different situations or to serve different purposes[133];

(6)  inspections carried out failed to discover that the design of the metal fence in question was not the same as the generic design[134];

(7)  there was no checklist for inspection[135]; and

(8)  checking on the stability of the metal fences erected was done merely by visual inspection and by pulling and shaking them manually[136], which she found was insufficient to confirm that the metal fence could serve the purpose of prevention a human being from falling from height.

89.  The matters which the magistrate took into account were relevant to her considerations and conclusions, which were well reasoned and supported by evidence.

90.  The fourth matter is related to the third.  It was the finding of the magistrate that there was a systemic deficiency in the inspection programmes to identify hazardous conditions and for the rectification of such conditions at regular intervals or as appropriate[137].  As we have already pointed out, the magistrate’s conclusion was appropriately supported by evidence.

91.  Mr Bruce placed some importance on the phrase “as appropriate”[138]. One aspect of his submission was that the legislative intent was to leave the matter to the judgement of the proprietor or contractor of the industrial undertaking, and therefore it followed that the common law defence of honest and reasonable belief came into play.  As discussed earlier[139], we hold that the offence in question is one of absolute liability and the common law defence is not applicable.

92.  Furthermore, the finding of the magistrate was that it was appropriate to have the inspection programme for the subject work, in particular in relation to the metal fence, but there was none[140].

93.  In our judgment, all the findings in question of the magistrate are sound and well supported by evidence.  We are satisfied that the magistrate had provided sufficient reasons for her decision in the circumstances of the case.

H.  Conclusion

94.  For the reasons we have given, this appeal against conviction is accordingly dismissed.

I.  Postscript

95.  It would be remiss of us if we did not express our disquiet at the manner in which this case was conducted.  The subject matter was relatively straightforward and was only complicated by the use of various technical terms. 

96.  The photographic evidence seems to us to be highly significant, and yet was appreciably downplayed by the appellant both at trial and on appeal.  There are photographs of the site where the deceased was working before and after the accident.  They depict prior to the accident the segment void with the metal fence and after the accident the metal fence once it had been retrieved from the sea.  In one photograph after the accident, a set of the washer plates and nuts are no longer seen at the face of the segment edge, indicating that they had been removed.  In another photograph after the accident, the deceased’s harness is hooked to a metal pole close to where the washer plates and nuts had been removed.  There are also photographs of the relevant structures and the items of equipment, particularly the connection of the vertical poles of the metal fence within the segment void.

97.  The defence at trial focused significantly on raising countless issues and objections in respect of the prosecution evidence, which would explain why this case took so long to be tried before the magistrate.  Not deterred from the enormity of her task, the magistrate dealt fully, fairly and entirely competently with the issues presented before her throughout the trial.  Her Statement of Findings is exemplary, as a comprehensive explanation, distillation and evaluation of the case, which has greatly assisted our task, as a correct elucidation of the law and as an admirable application of sound common sense.  She is to be commended for the way she handled the entire matter.