HKSAR v. NG SO YEE

HCMA181/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 181 OF 2008

(ON APPEAL FROM KTS NO. 1389 OF 2007)

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J U D G M E N T

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1. The appellant was summonsed for the following offence :

“… being an employee while at work at FLAT A21, 10/F., BLOCK A1, 17 KO FAI ROAD, YAU TONG , KOWLOON did on 28 July 2006 fail to take care for the safety and health of persons(s), namely LIN PIK CHAU who was at your workplace and who might be affected by your acts or omissions at work.”

contrary to section 8(1)(a) and 8(2) of the Occupational Safety and Health Ordinance (“the Ordinance”), Cap. 509.

2. The appellant pleaded not guilty and was convicted after trial and fined $3,500. He appeals against conviction.

Prosecution case

3. The prosecution case was that the proprietor of Diamond Noodle Factory (“Diamond”) purchased a noodle-making machine from the proprietor of Kong Loong Machine Factory (“Kong Loong”).  The latter also provided after-sale maintenance service to the former.  On the day in question, the machine was out of order and the appellant was sent by the proprietor of Kong Loong to effect repair.  The appellant was not an employee of Diamond.  During the repair the appellant removed the safety guards of the machine, thus exposing the dangerous parts, i.e. a pair of rotating gear wheels.  An employee of Diamond, Lin Pik Chau (“PW1”) was injured when his right hand was caught in the in-running nip of the running gear wheels.

4. As to how and why PW1 went close to the machine — which was moved from its original position by the appellant to effect repair, PW1’s version was that he had gone close to the machine on more than one occasion.  In any event, he finally obtained an affirmative answer from the appellant when he asked whether the repair had completed.  The appellant asked him to approach and try out the machine, which he did.  It was then that his hand got caught.

5. It was the prosecution case that the gear wheels were unnecessarily exposed in the course of the repair, and in any event, the appellant failed to take safety measures, such as cordoning off the machine, erecting barrier fences to prevent PW1 from approaching.

Defence case

6. The appellant admitted that he went to the premises of Diamond to repair the said noodle machine.  He said he moved the machine from its original place to another place in the factory.  The purpose of the removal was that no one would come close to the machine in its new position.  The appellant then removed the safety guards and proceeded to repair.  PW1’s gratuitous offer to assist was declined by the appellant.  PW1 became impatient with the slow progress of the appellant’s work.  Finally the appellant switched on the machine and went to the back of the machine to check.  At the time PW1 came to the front of the machine and told the appellant that he (PW1) would be going out for a meal and that the appellant should complete the work by 1:30 p.m.  It was then that the appellant found the machine stop running and PW1 injured.

7. The appellant was aware of the danger and obvious risks posed by the exposed moving parts of the machine to anyone nearing it.  PW1 had approached the appellant on at least 3 occasions that morning.  The appellant had never told PW1 that the repair had completed, nor did he invite PW1 to try out the machine.

8. The appellant explained that he was working at the factory of another and he had no right to give instructions to construct some barrier by using the bags of flour in the factory.  He did not think about using the wooden board as barrier.  He did not put up any warning signs or notice, nor had he cordoned off the machine.

The magistrate’s findings

9. The magistrate went into great detail of the evidence to decide whether the appellant was an “employee” as defined in the Ordinance.  He came to the conclusion that the appellant was an employee of the proprietor of Kong Loong. After considering the wordings of said section 8, the magistrate was of the view that the fact that the appellant was not an employee of Diamond did not matter as the prosecution need not prove both the appellant and PW1 were employed by the same employer.

10. The magistrate accepted the appellant’s version of how PW1 came to be close to the machine before injury and rejected PW1’s version.  The magistrate also ruled that on a balance of probabilities that the gear wheels, while running, needed to be exposed in the course of the appellant’s ongoing repair work.  However, the magistrate found that the appellant was guilty of certain obvious omissions, such as failing to cordon off the machine before switching it on with the exposed running gear wheels, failing to put up some barriers, failing to warn off PW1, and failing to put up warning signs and/or notices.

Grounds of appeal

11. In the home-made written ground of appeal, the appellant said as he was working in the factory of another person, he needed permission from the factory to cordon off the machine as such would have caused obstruction and affected their work.  The appellant needed the co-operation and consent of those at the factory. No one there had discussed with him the question of erecting a safety barrier. When the appellant informed those present the danger of the machine and asked them not to approach, no one took heed.  That was the reason why he did not erect a barrier. 

12. In his oral submission, the appellant basically repeated his written submission.  He said before he started work the proprietor of Kong Loong did not give him instructions to erect any barrier.  Those present at Diamond should also be responsible because there was no safety officer and no operation manual about how to effect repair of the machine.  He said he realised he was responsible but he felt he was unfairly treated because the others were not prosecuted.

Discussion

13. On the evidence before the magistrate, he is fully entitled to find that the appellant was an employee of the proprietor of Kong Loong. The appellant was charged with an offence under the said section 8(1)(a) and 8(2), which read :

“(1)    An employee while at work—

(a)   must, so far as reasonably practicable, take care for the safety and health of persons (including the employee) who are at the employee's workplace and who may be affected by the employee's acts or omissions at work; and

(b)   ...

(2) An employee who fails to comply with subsection (1) commits an offence and is liable on conviction to a fine at level 3.”

14. The heading of this particular section are as follows :

“Employees at work to take care of others and to co-operate with employer.”

At first glance, one gets the impression that the section refers to the duty of employee to fellow employees, i.e. people employed by the same employer.

15. However, having read the purpose of this particular Ordinance as stipulated under section 2, which reads :

“The purposes of this Ordinance are as follows—

(a)   to ensure the safety and health of employees when they are at work;

(b)   to prescribe measures that will contribute to making the workplaces of employees safer and healthier for them;

(c)   to improve the safety and health standards applicable to certain hazardous processes, plant and substances used or kept in workplaces;

(d)   generally to improve the safety and health aspects of working environments of employees.”

and the contents of section 7 of the Ordinance which deals with occupier of premises :

“(1)    If an employee’s workplace is located on premises that are not under the control of the employee’s employer, the occupier of the premises must ensure that—

(a)   the premises; and

(b)   the means of access to and egress from the premises; and

(c)   any plant or substances kept at the premises,

are, so far as reasonably practicable, safe and without risks to health.

(2) An occupier who fails to comply with subsection (1) commits an offence and is liable on conviction to a fine of $200000.

(3) An occupier who fails to comply with subsection (1) intentionally, knowingly or recklessly commits an offence and is liable on conviction to a fine of $200000 and to imprisonment for 6 months.”

it defies logic to say that only fellow employees’ safety and health would be protected, and not those whose safety and health are affected by people employed by others.

16. The evidence showed that the appellant was an employee at a workplace.  While appreciating the appellant might encounter certain difficulties in trying to erect barriers around the machine when he was working at some other’s premises, the fact was he did not make an attempt.  It is not good enough to say that other people knew the machine was dangerous when being exposed.  The spirit of the legislation, imposing a strict liability with the onus on the defendant (the appellant in this case) to establish compliance was not practicable or reasonable steps were taken (pursuant to section 38 of the Ordinance), was clearly to protect all workers at a workplace, including the very employee who allegedly infringe the law.

17. On the facts found by the magistrate, Lin and other workers had come close to the machine on more than one occasion.  The appellant had not told Lin the repair had completed and had not invited Lin to try the machine out.  It was Lin who was impatient with the progress and somehow got his right hand injured by the exposed in-running nip.  Lin’s act might well have contributed to the injuries he sustained, but that does not absolve the appellant from his obligation to take reasonable care for the safety and health of those inside Diamond when the appellant repaired the said machine.

18. The conviction is neither unsafe nor unsatisfactory.  The appeal is dismissed.