HKSAR v. LEE FUNG CONSTRUCTION CO LTD

HCMA1062/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1062/2005

(ON APPEAL FROM KTS 4766 OF 2005)

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J U D G M E N T

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1.  This is an appeal against the conviction for an offence contrary to section 6A(1), (2) and (3) of the Factories and Industrial Undertakings Ordinance, which I can summarise by saying it was a failure to provide a safe system of work. 

2.  The prosecution arose out of an accident that occurred on 8 October at a construction site by the side of a public road in Sai Kung.  It seems to me the most helpful document in the whole case is the photograph, which is Photograph A of Exhibit P4.  The plan was to construct a car park.  Eight parking bays were going to be created by the side of the road.  In Photograph A, one can see the road at the top left-hand side of the page.  By the side of the road, there was a flat, scrubby area on which one could drive a vehicle and there was loose material and the like scattered about until it met the edge of some very significant vegetation - it has been described as ‘grass’ but, in truth, these are very big grasses which are the size of a man, at least.  What has figured in this case particularly is the fact that between the area you could drive on and that wall of vegetation that abutted it, there was a culvert which was 60 centimetres wide and 330 centimetres deep.  That is well over 10 feet deep.

3.  On the day in question, 8 October 2004, a lorry arrived with some workmen on it to deliver safety barriers to the site.  The day before that, the foreman had been to the site to carry out an inspection and part of his duty there, which he acknowledged, was to see if there were any hazards.  He spent 10 minutes carrying that out.  He did not have any pole with him to probe about or the like, and the information he had, the plan of the site, signally failed to disclose the presence of that deep culvert.  Of course, the culvert was unfenced.  Because of loose grass and the like, as one can see in the foreground of Photograph A, it was a culvert that was hidden from view.

4.  What happened on the day in question was that the lorry pulled up and backed up towards the edge of the site as we see in Photograph A, which is where the accident occurred, and PW2, the unfortunate workman who was injured, went to the rear of the flatbed lorry which could then have its sides and the rear flap lowered so he could remove the safety barriers.  The safety barriers are the sort that we can see in Photograph C of Exhibit P4.  In doing that, because he went round to the rear of the vehicle, he, unfortunately, fell into the culvert.

5.  At the trial in the Magistrates Court, the 5th prosecution witness was a safety expert.  He said that a safe system of work required that a proper risk assessment be performed before any work commenced.  That expert said that the visit by the foreman on the day before was inadequate.  It was too short; he did not have the proper information; and he did not have the proper tools.  His opinion was that, accordingly, the employers had not put in position a safe system for assessing the risk here, and since assessing the risk was part of providing a safe system of work, his opinion was that they failed in that duty.  The Magistrate accepted that and convicted the Appellant. 

6.  It is right to point out the Appellant had a clear record and had sent the workmen on various Government courses and given them sensible instructions as to how to go about their work generally.  There is every appearance of them being good and responsible employers.  But of course, these obligations are ones that, subject to reasonable practicability, impose a heavy duty upon an employer who has men working at a construction site.

7.  Mr Yip has argued this appeal very nicely before me today and he says the purpose of the risk assessment carried out by the foreman was only to see if it was going to be safe to deliver the safety barriers.  He was not there to survey the whole site and it is unreasonable that he go into the area covered by the long grass and starting poking about in there.  I have some sympathy with that.  But this accident did not occur, and the object creating the risk, the culvert, was not buried deep in the vegetation.  If one looks at Photograph No. A, it is right on the edge between the flat part, where you can expect the lorry to park, and where the vegetation begins.  It, in itself, in effect, is the barrier.  It is what led the magistrate to find that the culvert was partially in the working area.  I agree with that finding; it is.  It is not so far into the bush that it would fall outside what should have been the reasonable contemplation of the foreman.

8.  The submission that Mr Yip made that, really, the culvert was too far from the area of delivery was, I am afraid, one that I rejected.  He makes the point that, of course, you cannot base this on counsels of perfection and ideals, and I agree.  But if one looks at Photograph No. A, one can quite see how a lorry parking off the road, backing into the area where the car parking bays are going to be constructed, may well back up with its rear end towards the edge of the site.  Mr Yip has argued that because of general instructions that come from material which was distributed to workers on training courses that they attended, these barriers should have been unloaded into the middle of the site and not at its edge.  I regret to say I think that is an unrealistic submission in the circumstances.  When you come to a site of this sort of size and nature, I think it eminently foreseeable that the safety barriers will be stacked to one side of the site rather than plumb in the middle where other vehicles have got to come.  It is the sort of place that a tidy mind might well place them.  It seems to me foreseeable that a man could well stand in the area where this 10 foot culvert existed, unfenced, unfound by the foreman who was there to look for hazard.

9.  It was argued by Mr Yip that the instructions given to the workmen of, “If you go to a site, be careful how you unload.  Don’t unload by the edge of things that can be dangerous, where there’s a drop or there’s water or the like,” is too general an instruction to become or represent a safe system of work, because the magistrate relied on, and I rely on, the expert who says that a safe system of work, given current practice here in Hong Kong, is one that should carry out a risk assessment for a site such as this.  In the end, liability to be convicted of this crime, really comes down to this:  look at Photograph A; is that something that a proper system of risk assessment should have revealed?  And the answer the magistrate gave, and the answer I give, to that is “yes”.  So in my judgment, there was a failure to provide a safe system of work.

10. That finding I make renders arguments advanced that the employer was in the process of implementing a safe system of work, because an excavator was going to arrive and the like, basically irrelevant.  The breach had occurred by the failure to carry out the proper risk assessment.

11. Accordingly, I shall dismiss the appeal and confirm the order made by the magistrate.