HKSAR v. CHUN WO CONSTRUCTION AND ENGINEERING CO LTD

HCMA 251/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 251 OF 2003

(ON APPEAL FROM STS 900319-20/2002)

____________

____________

_______________

J U D G M E N T

_______________

1. The Appellant, which is a limited company, was the contractor responsible for a construction site in Tin Shui Wai. It appeared before P L Chan, Esq. in the Magistrate's Court at Sha Tin on two charges arising out of events at that construction site on 13 August 2002. Both charges were brought under the Construction Sites (Safety) Regulations, Cap. 59. One was that the Appellant, being the contractor responsible for a construction site at which there was being carried out a process which resulted in particles of material being produced in such a manner that they were likely to enter the eyes of a workman engaged in the process, failed to ensure that the workman used the suitable goggles provided. This charge, which I will call the "goggles" charge, was laid under Regulations 43(b), 68(1)(a) and 68(2)(b).

2. The other charge was that the Appellant, being the contractor responsible for a construction site, failed to ensure that no timber with projecting nails was used or left on the site where the projecting nails were a source of danger to workmen working there. This charge, which I will call the "nails" charge, was laid under Regulations 51, 68(1)(a) and 68(2)(b).

3. On 20 January 2003, the Magistrate convicted the Appellant on both charges. The Appellant appeals against both convictions. In respect of the 'nails' charge, it also appeals against sentence and the order for costs. I will come to that later. I will deal with conviction first.

Conviction

4. Two perfected grounds of appeal against conviction have been filed. They read as follows:

"1. The Learned Magistrate erred in law in holding at P. 5 paras. 27/28 of his Statement of Findings that there was no 'common law' defence to the charge under Regulation 43(b) of the Construction Sites (Safety) Regulations, and he also erred in law in that he ought to have held that the 'common law' defence was also available to the charges under Regulation 51.

2. The Learned Magistrate erred in law, alternatively misdirected himself as to the facts, in relying only on demeanour in accepting the evidence of PW1 and rejecting the evidence of both Defence witness (P. 6 paras. 32 and 33)."

5. It is convenient to deal with ground 2 first. In dealing with it, I will begin by setting out what the Magistrate said in his Statement of Findings about the evidence which he accepted, namely that of PW1 who was the only prosecution witness.

6. This is what the Magistrate said about PW1's evidence on the "goggles" charge:

"10. PW1 was the Labour Department officer who conducted a site safety inspection accompanied by the safety officers of the Defendant.

11. PW1 inspected the Site on 13th August, around 1.30 pm - 3.30 pm. At around 2.20 pm he arrived at the 2/F carpark block on Site. He saw a worker (later identified to be Mr Mak - DW 2 ("Mr Mak"). Mr Mak was holding an electric breaker performing breaking work on a ceiling beam. He was standing on horizontal wooden beams. PW1's observation lasted for 1 minute and he noticed that Mr Mak had not worn any goggles.

12. Thereafter, PW1 took photos of the scene and observed dust and concrete to fall onto Mak's body.

13. PW1 testified that he approached Mr Mak and told him to stop and asked him why he had not used goggles. PW1 testified that Mr Mak didn't reply - PW1 testified that Mak tried to find some goggles in the vicinity. Mak left the scene and he returned later with a pair of goggles and said had forgotten to wear them. PW1 said he saw no posters warning workers of dangers of being unprotected by goggles."

7. As to PW1's evidence on the "nails" charge, the Magistrate said:

"14. PW1 testified that he also saw some timber nearby which had about 6-7 protruding nails - and as was indicated in photos B + D which were exhibited as Prosecution evidence.

15. PW1 - under cross-examination, didn't accept that Mr Mak's breaking work was less than 1 minute; that Mr Mak was wearing safety shoes; or that no-one else was working nearby. PW1 estimated that the distance between where Mr Mak was working and where protruding nails were was about 1.5 metres."

8. Two defence witnesses were called. This is what the Magistrate said about their evidence, which he rejected:

"19. DW1 was the Defendant company's Safety Officer, He testified that his company had a system of safety procedures, which were implemented. (that was not disputed by the prosecution.)

20. He visited scene of alleged offences with PW1. DW1 testified that Mr Mak told PW1 that he forgot to wear the goggles momentarily and he took off the goggles when he came down from standing on the wooden battens.

21. DW1 testified Mr Mak went to look for goggles but he couldn't find them. Mr Mak later found them on top wooden beams nearby - DW1 also testified that PW1 did complain to him about the exposed nails nearby.

22. That essentially, was the permissible testimony of DW1.

23. DW2 was Mr Mak the alleged principal offender - he testified that he was given suitable training and equipment prior to working. He said that on the day in question, he wore the goggles to do breaking work with the electric breaker, he struck an iron bar and stopped his work to examine if there was any damage.

24. He took off his goggles but continued to chip away the loose concrete. Mr Mak during his examination in chief testified that took about 1 minute. Then thereafter he was stopped by the safety officers. DW1 testified that there was not protruding nails in his vicinity of work."

9. Although he rejected DW2's evidence, the Magistrate said that he would have convicted on the "nails" charge even if he accepted DW2's evidence because:

"31. In regards to the second summons, DW2 said that the nails were not nearby. He said nails were located about 2 metres away. Again, even if accepted this I still find that the exposed nails did cause a danger to DW2 himself. I would convicted in any event.

10. As it happened, however, the Magistrate accepted PW1's evidence and rejected the evidence of DW1 and DW2. This is what the Magistrate said as to why:

"32. Be that as it may - having had opportunity of observing the demeanour of both DW's in the witness box I did not find them to be reliable and/or trustworthy witnesses and I rejected their evidence, especially in regards to whether goggles were found at the scene and whether DW2 was wearing them at any stage while PW1 was present. I made no adverse inferences from the fact that I rejected their evidence.

33. I had opportunity of observing demeanour of PW1. I found him to be honest, truthful and reliable. I accepted the entirety of his evidence."

11. Even though a Magistrate - and the same applies to a District Court Judge, I might add - does not say so in terms, an appellate court would normally take him to have assessed the witnesses' demeanour not in isolation but in the context of all the circumstances of the case including its inherent probabilities. And an appellate court would normally trust a professional tribunal not to convict by accepting prosecution evidence and rejecting defence evidence except after a careful consideration of all those circumstances and with the criminal burden and standard of proof firmly in mind. Appellate courts normally take professional tribunals to have behaved in the foregoing way because that is the natural way for professional tribunals to behave. If there is any actual indication to the contrary in any given case, that is another matter. But there is no such indication in the present case. Ground 2 asserts without foundation that the Magistrate relied "only" on demeanour as if he did that in a way which was blinkered to all else. This ground fails.

12. I will now revert to ground 1. It arises out of the part of the case about which the Magistrate said this in his Statement of Findings:

"27.	Defendant counsel sought to persuade me that section 43(b) was not a strict liability offence. I had no hesitation in rejecting this argument. I found that no "common law" defence as Mr Kwan put it is available in regards to breach of section 43(b) for same reasoning as outlined by the Honourable Deputy High Court Judge, Mr Line in HKSAR v Hyundai Engineering (HCMA 815/2002) as was submitted Defence counsel. I am bound by that Decision.
28.	Deputy High Court Judge in that case said:
	'I can see no need to upset the established law that has seen magistrates try such cases on the basis of strict liability without the claimed common law defence for decades. I can see good reason to exclude the defence as its availability opens up a host of issues and complexities that should have no place in summary trials of regulatory offences.' "

13. If a statutory offence requires certain mens rea or is of strict but not absolute liability in that it admits of some defence, then that would arise out of the true construction of the statute. It would not be a matter of a "common law defence".

14. What is the defence which it is submitted is available on the true construction of these regulations? This is how it is put in the skeleton argument provided by Mr Mumford for the Appellant:

"The true position in law is that the prosecution did not have to prove mens rea but that it would be a defence if the accused could prove on a balance of probabilities that it believed for good and sufficient reason albeit erroneously that the provision of the Regulations had been complied with ('the defence')."

Regulation 43(b), being the one under which the "goggles" charge was brought, reads:

"The contractor responsible for any construction site, where there is carried on any process which results in articles of material or dust being produced in such a manner as to be likely to enter or damage the eyes of any workman engaged in the process, shall ensure that ... the workman uses the goggles or screens, as the case may be."

Regulation 51, being the one under which the "nails" charge was brought, reads:

"The contractor responsible for a construction site shall ensure that no timber or material with projecting nails or other sharp objects are used or left on the site if the nails or objects are a source of danger to workmen employed there."

15. The defence argued by Mr Mumford under each of those regulations is this. Even if the Appellant failed to ensure the existence of the state of affairs which those regulations require it to ensure, a defence would still, Mr Mumford submits, be available. It is a defence, Mr Mumford submits, if the Appellant proves on balance that it believed for good and sufficient reason, albeit erroneously, that the state of affairs which it was required to ensure existed actually existed.

16. The evidence on which Mr Mumford submits that this defence was made out consist partly of defence evidence which I have held the Magistrate justifiably rejected, partly of documents and partly of certain evidence which the prosecution had not disputed at the trial. The documents really go to support the evidence which had not been disputed by the prosecution at the trial. This undisputed evidence was that of DW1, the Appellant's safety officer, that, to quote from para. 19 of the Magistrate's Statement of Findings, the Appellant "had a system of safety procedures, which were implemented". So this was a system which, even though it was implemented, failed to bring about the state of affairs which the Appellant was required to ensure under each regulation. The defence for which Mr Mumford argues, assuming it exists in law, is not made out merely by having a safety system which is implemented. Merely having a safety system aimed at a certain result does not of itself provide good and sufficient reason for believing that the result had been achieved.

17. Assuming without deciding that there is under each of these regulations a defence in law like the one for which Mr Mumford argues, I am satisfied that no such defence was made out on the evidence in the present case. So this ground also fails.

18. Mr Mumford for the Appellant said that if the defence existed in law but the Magistrate held that it did not exist in law, then the Appellant must succeed without reference to the facts. I reject that argument. The Court is concerned with the correctness of the result and not merely every pronouncement of law made by the Magistrate in the case. No party can succeed on academic points unrelated to the facts of the case.

19. In the result, neither conviction can be disturbed, and the appeal against convictions is dismissed. That leaves the appeal against sentence and costs.

Sentence

20. Each charge was brought under a separate summons. On each charge, the Magistrate fined the Appellant $15,000 and ordered it to pay $2,500 costs. In respect of the "nails" charge, the Appellant also appeals against sentence and the order for costs.

21. Here Mr Mumford's submission is that the sentence on the "nails" charge should not have been as severe as the one on the "goggles" charge because the Appellant has no previous conviction similar to the one on the "nails" charge even though it had four previous convictions similar to the one on the "goggles" charge, the last such conviction having been on 12 May 2000.

22. In my view, the Magistrate would have been entitled, if he had seen fit, to sentence considerably more heavily on the "goggles" charge than he did. The physical safety of persons was involved. All things considered, I feel unable to say that the sentence on the "nails" charge was not one which the Magistrate was entitled to pass. As to the order for costs, I am of the view that the Magistrate was entitled to make it. Accordingly, I also dismiss the appeal against sentence and costs.