PAUL Y GENERAL CONTRACTORS LTD v. HKSAR

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FACC Nos 4 and 5 of 2012

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NOS4 AND 5 OF 2012 (CRIMINAL)

(ON APPEAL FROM HCMA NO 922 OF 2009 AND NO 102 OF 2010)

_______________________

FACC No 4 of 2012

Mr Justice Chan PJ :

1.  I agree with the judgment of Mr Justice Tang PJ.  For the reasons given by him, the “proprietor” charges against the appellants in these two appeals should be set aside but the “contractor” charges should be upheld.  I would however say a few words on the proprietor charge.

2.  The object of the safety requirements provided in the Factories and Industrial Undertakings Ordinance, Cap 59 (“the Ordinance”) is to ensure that places of work are safe and those working in these places are, as far as reasonably practicable, free from risks and dangers.  The net is necessarily cast very widely in order to ensure that proprietors and contractors of industrial undertakings (which are defined to include places of work and the activities carried on in these places) are held responsible for any failure to comply with these safety requirements and cannot escape responsibility simply by sub-contracting the work to other proprietors or contractors.  This object would be frustrated if the charges against those who should be held responsible are not properly laid or the allegations against them are wrongly made, even though there are clear contraventions of these safety requirements.

3.  Under s 13(1), the prosecution must prove that first, the accused is a proprietor in an industrial undertaking (which includes the person having the management and control of the business carried on in an industrial undertaking) and secondly, an offence under the Ordinance has been committed in or in respect of such industrial undertaking.  On the first issue, it is important to identify correctly the industrial undertaking (ie the place of work and/or the activities carried on in that place) of which the accused is alleged to be the proprietor.  On the second issue, it is necessary to specify the offence which it is alleged has been committed in or in respect of this industrial undertaking including the ingredients of the offence and the alleged offender.  Where s 6A is the alleged predicated offence, the proprietor who was the employer of the persons working in the industrial undertaking and the alleged breach of duty by this proprietor should be clearly stated.  It is only when the s 6A offence has been proved to have been committed (even if the proprietor who was the employer of the workers involved was acquitted) that the proprietor charged under s 13 can be guilty of a like offence.

4.  The correct formulation of the charge is important in a criminal prosecution because it is essential that an accused, in order to have a fair trial, should be made aware of what the case is that is alleged against him.

5.  At the trial of Paul Y, it appears that although the proprietor charge was framed as a “combination” of s 6A(2)(a), 6A(3) and s 13(1), Paul Y was alleged to have been in breach of the duty under s 6A.  In other words, Paul Y was alleged and sought to be proved to be the offender under s 6A when it was quite clearly not the employer of the persons involved in the industrial accident.  What in fact should have been the case against Paul Y was that a s 6A offence had been committed in or in respect of an industrial undertaking by Ka Shing (the sub-sub-contractor) and that Paul Y, as a proprietor of that industrial undertaking, should be guilty of a like offence under s 13.  That, unfortunately, was not the case presented against Paul Y; nor was it the basis upon which it was convicted.  The same criticism can be made in respect of the trial of Lucky Engineering.  The convictions on the proprietor charge again both appellants must be quashed.

Mr Justice Ribeiro PJ :

6.  I agree with the judgment of Mr Justice Tang PJ and the observations of Mr Justice Chan PJ.

Mr Justice Tang PJ :

7.  These appeals concern accidents at different locations involving different parties.

8.  In FACC 4/2012, the appellant, Paul Y General Contractors Limited (“Paul Y”), entered into a contract with CK Construction Management Limited (“CKCM”), the owner’s or employer’s representative[1], to undertake carcass work at a building site in Homantin.  The carcass work included aluminium cladding work, which was contracted to HH Robertson Limited (“HH Robertson”) by Paul Y.  HH Robertson in turn subcontracted the work to Ka Shing Engineering Company (“Ka Shing”).  On 20 September 2008, two employees of Ka Shing fell when an aluminium slab, which was 6 metres or more above the ground, on which they were standing, buckled.  Tragically, one of the workmen died.

9.  In FACC 5/2012, on 30 October 2008, a workman was electrocuted whilst installing floodlights at the wooden catwalk over the top of the indoor swimming pool at the Happy Valley Clubhouse of the Jockey Club.  The appellant, Lucky Engineering Company Limited (“Lucky Engineering”), was the Jockey Club’s contractor for the upgrading of its electrical power system at the swimming pool as well as the supply and installation of 32 250W floodlights (called the black lights in these proceeding).  However, they were responsible also for the supply of electrical powers for 18 400W floodlights (“grey lights”).  The deceased was engaged in the installation of the grey lights when he was electrocuted.  The deceased was not an employee of Lucky Engineering.

10.  As a result of the accident, Paul Y was convicted after trial of three charges, namely, that Paul Y:

(1) being a proprietor of the industrial undertaking, namely the installation of aluminium cladding panels to the roof feature on Tower 2 at the proposed residential development in Homantin (“the Homantin site”), failed to provide and maintain a system of work in relation to such installation, that were, so far as was reasonably practicable, safe and without risks to health of the person(s), employed at the industrial undertaking, contrary to Sections 6A(1), 6A(2)(a), 6A(3) and 13(1) of the Factories and Industrial Undertakings Ordinance, Cap 59 (“the Ordinance”).  (Summons No KCS10149/2009)

(2) being the contractor responsible for a construction site at the Homantin site failed to ensure that, so far as was reasonably practicable, suitable and adequate safe access to and egress from a place of work at the roof feature on Tower 2 of the Homantin site was provided and properly maintained, contrary to Regulations 38A(2), 68(1)(a) and 68(2)(g) of the Construction Sites (Safety) Regulations, Cap 59I, made under the Ordinance (“the Regulations”).  (Summons No KCS10145/2009)

(3) being the contractor responsible for a construction site at the Homantin site failed to take adequate steps to prevent a person on the site from falling from a height of 2 metres or more, namely the installation of aluminium cladding panels to the roof feature on Tower 2, contrary to Regulations 38B(1), 68(1)(a) and 68(2)(g) of the Regulations. (Summons No KCS10147/2009)

11.  Lucky Engineering, the appellant in FACC 5/2012, was convicted after trial of two charges, namely, that Lucky Engineering:

 (1) being a proprietor of the industrial undertaking at the Happy Valley Clubhouse, failed to provide a system of work for the installation of 18 400W-floodlights at the wooden catwalk over the top of the indoor swimming pool of the premises, that were, so far as was reasonably practicable, safe and without risks to health of the person(s) employed at the industrial undertaking, contrary to Sections 6A(1), 6A(2)(a), 6A(3) and 13(1) of the Ordinance.  (Summons No ESS15117/2009)

(2) being the contractor responsible for a construction site at Happy Valley Clubhouse, such site being one where workmen were employed and such workmen were liable to come into contact with a live electric cable, before the commencement of the work at the site and during its progress, failed to take such measures as would prevent those workmen from being endangered by the live electric cable, contrary to Regulations 47(1), 68(1)(a) and 68(2)(a) of the Regulations.  (Summons No ESS15118/2009)

12.  The charges against Paul Y and Lucky Engineering respectively were tried before different Magistrates.  Their appeals were consolidated and heard before Deputy High Court Judge E Toh (as she then was).  On 19 August 2011, the Judge dismissed both appeals.

13.  On 30 March 2012, leave was granted by the Appeal Committee for the appellants to appeal on the following points of law of great and general importance and under the substantial and grave injustice limb:

(a) Does s 13(1) of the Factories and Industrial Undertakings Ordinance, when read together with s 6A(1) of the same Ordinance, permit a proprietor to be convicted of “a like offence” (as stated in the former Section), in relation to a person who was not a person “employed by him”, ie not employed by that proprietor?

(b) If the answer to sub-paragraph (a) above were in the affirmative, whether under the Ordinance, any defence would be available to that proprietor, under those circumstances?

(c) Under Regulation 2(2)(a) of the Construction Site (Safety) Regulations, whether a contractor from whom other contractors did not derive their contracts, could nevertheless be deemed, the principal contractor?

(d) Under Regulation 2(2)(a) of the Construction Site (Safety) Regulations, whether a contracted “owner’s representative” necessarily precluded the said owner’s representative from being the principal contractor?

14.  As the charges show, these appellants were charged in two different capacities, as proprietors, under s 6A and s 13 of the Ordinance, and as contractors, under Regulations 38A(2) & 38B(1) of the Regulations in the case of Paul Y and , in the case of Lucky Engineering, Regulation 47.

A.    Proprietor

15.  These charges are based on s 6A and s 13.

Section 6A(1) reads:

“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]

Section 13 reads:  

“(1) ... 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[3] for such offence.

(2) It shall be no defence to a prosecution of the proprietor of an industrial undertaking for an offence against this Ordinance that the offence was committed without his knowledge or consent or that the actual offender has not been convicted of the offence.

(3) Nothing in this section shall apply to an offence under section 6B or section 6BA(15).”[4]

16.  Section 2 provides: 

“‘proprietor’ (東主) in relation to any industrial undertaking or notifiable workplace includes the person for the time being having the management or control of the business carried on in such industrial undertaking or notifiable workplace and includes a body corporate and a firm and also the occupier of any industrial undertaking or notifiable workplace and the agent of such occupier.”

17.  Section 6A imposes a general duty on a proprietor to ensure the safety of his employees.  The general duties are imposed because regulations could not cover every aspect of industrial safety no matter how frequently they were amended.  Section 6A was modeled on English legislation.[5]  Section 6B imposes a duty to take care on an employee for himself and of other persons who may be affected by his acts or omissions at work.[6] However, the English legislation also imposed a duty on an employer to take care in respect of persons other than the proprietor’s employees.[7] The Ordinance does not contain a similar provision. 

18.  It was the prosecution’s case that s 6A and s 13 in combination imposed a duty on a proprietor to ensure safety extending beyond his employees.[8] The prosecution case against Paul Y and Lucky Engineering was that the predicated offence, namely, the failure to take care under s 6A, was committed by each of the appellants, as proprietor.  Hence, the charges alleged that Paul Y or Lucky Engineering “being a proprietor” “failed to provide a safe system of work” and that the charges alleged that the failure contravened was “contrary to sections 6A(1) … 13(1) …”.  The prosecution contended that although the duty under s 6A was directed at persons employed by the proprietor, s 6A read with s 13 extended the duty beyond the proprietor’s employees.

19.  Deputy Judge Toh agreed, and at para 15 of her judgment, she said:

“… the legislature deliberately did not follow s.3 of the (1974 Act) because they must have felt that it did not properly cover the Hong Kong situation, and that it was necessary to enact a section with a more far reaching coverage of the Hong Kong situation, and that is why s.13 was duly passed and enacted.”

20.  In fact s 13 has its equivalent in s 36 of the 1974 Act.  Moreover, s 13(1) and (2) could be traced to s 28 (2) and (3) of the Factories and Workshops Ordinance Chapter 59, 1938,[9] which was replaced by the Ordinance in 1955.  Thus, it has long been the case that a proprietor could be charged under s 13 if, for example, a contractor commits an offence under subsidiary legislation made under the Ordinance[10], for example, Regulation 38A(2), Regulation 38B(1) or Regulation 47(1).

21.  On the other hand, s 6A and s 6B were introduced by the Factories and Industrial Undertakings (Amendment) Bill 1989 (the Amendment Bill).  The Amendment Bill introduced the notion of a general duty on a proprietor to ensure the safety of his employees.  That became s 6A.  A similar duty was imposed on an employee to ensure his own safety and the safety of other persons who may be affected by his acts or omissions at work (s 6B).  Importantly, the Amendment Bill introduced a custodial sentence[11] for the first time, not only for the contravention of s 6A or s 6B which the Amendment Bill introduced, but also for breaches of subsidiary legislations, such as the Regulations.  Eventually, government’s proposal regarding a custodial sentence was watered down, such that, for example, it would only be available if a proprietor or an employee contravenes s 6A and s 6B respectively “wilfully and without reasonable excuse”.[12] Also, the definition of “proprietor” was narrowed down by deleting the words “or receiving the profits” after “management or control”, so that passive partners or shareholders would not fall within its ambit.    

22.  It was contended below that s 6A and s 13 in combination imposed a duty on a proprietor to ensure safety extending beyond his employees was supported by what McMahon J said in HKSAR v China Overseas Building Construction Ltd [2007] 2 HKLRD 216. 

23.  McMahon J has been misunderstood.  In China Overseas Building, the appellant was the principal contractor on a construction site.  He was prosecuted as occupier under s 7 of the Occupational Safety and Health Ordinance, Cap 509 (“OSHO”), in respect of the death of a pump operator employed by a sub-contractor.  The pump operator was killed while operating a concrete pumping machine.  There, the sub-contractor, as employer, was guilty of a failure to ensure the safety of his employee under s 6 of OSHO.[13] As McMahon J explained, because the deceased was not the appellant’s employee, the appellant was charged as occupier under s 7 of OSHO.  However, there were significant differences in the duties of an employer under s 6 and an occupier under s 7, and as the appellant was not in breach of any duty as occupier, its appeal was allowed.

24.  It was in that context that McMahon J mentioned s 13 of the Ordinance[14] and said the appellant might have been charged under s 13.  In that case, he said:

“26. That would mean that the proprietor (which includes occupier) of an industrial undertaking (which is defined broadly and which would include the workplace relevant to the present appeal) would be liable where an offence perhaps by an employer has been committed against the provisions of the Factories and Industrial Undertakings Ordinance. That seems to have been a course available to the prosecution in the present case.”

25.  It is obvious that McMahon J had in mind that the sub-contractor employer in China Overseas Building might be prosecuted under s 6A of the Ordinance, and the appellant, as principal contractor, under s 13.  With respect, I agree. 

26.  I reject the submission that s 6A and s 13 in combination imposed a duty on a proprietor to ensure safety extending beyond his employees.  The language of s 13 is too plain to admit any serious argument.  Section 13 is predicated on an “offence … (having been committed)”.  Indeed, it made clear that “It shall be no defence … that the actual offender has not been convicted of the offence.” (my emphasis).

27.  Before us, Government advanced a different argument.  It argued that Paul Y is guilty under s 13 because Ka Shing had committed a s 6A offence.  In other word, Paul Y as proprietor is liable for the s 6A offence committed by Ka Shing, another proprietor.[15] 

28.  As noted, the definition of proprietor in the Ordinance is wide and “in relation to any industrial undertaking or notifiable workplace includes the person for the time being having the management or control of the business carried on in such industrial undertaking …” and “Industrial undertaking” covers a wide variety of activities and includes “(e) any construction work”. There is no doubt a person who has the management or control of a business carried on at a construction work can be a proprietor for the purposes of s 6A and s 13. 

29.  Mr Gerard McCoy SC, for Paul Y, submitted that, for the purposes of s 6A and s 13, there could only be one proprietor, and he is the person at the apex of an industrial undertaking.  He contended that CKMC, the owner’s representative, should be regarded as the only proprietor.  And that if such a proprietor could not be charged under s 6A because the lack of care did not involve his employee, he could not be charged under s 13 which is predicated on someone else having committed an offence under the Ordinance.  In other words, a predicated offence in s 13 could not be an offence under s 6A.

30.  I do not agree.  It is obvious that more than one business could be carried on at a construction site at the same time.  In Paul Y’s case, the aluminium cladding work could be regarded as one such business.   Indeed, Mr McCoy agreed with Mr Justice Gleeson NPJ, that an independent contractor employed to remove rubble from a construction site would be carrying on a discrete business at a construction site. 

31.  In the end, Mr McCoy rightly accepted that proprietor as defined in the Ordinance might cover as many proprietors as there are contractors on a construction site.

32.  Mr Robert Pang SC for the Government gave the example of a Russian doll, with ever smaller dolls inside larger dolls.  He submitted a larger doll could be guilty under s 13 in respect of a s 6A offence committed by a smaller doll.  I agree there could be more than one proprietor at an industrial undertaking, such that when there is a chain of contracts each contractor in the chain is a proprietor of its own business and could be charged individually in respect of its own employees under s 6A.  In FACC 4/2012, Ka Shing, the aluminum cladding sub-contractor, was the proprietor of its aluminum cladding work at the Homantin site and as such could be prosecuted under s 6A in respect of its failure to ensure the safety of its employees.  Paul Y as the proprietor of the Carcass construction work which included the aluminium cladding work, could be charged under s 13 in respect of Ka Shing’s contravention of s 6A.  That is because Paul Y’s business encompassed the business of CKMC.  The definition of proprietor is wide enough to cover such situation, and it was the obvious intent of s 13. 

33.  However, that was not the basis of the proprietor charge against Paul Y.  It follows that Paul Y’s appeal in respect of the proprietor charge must be allowed.

34.  The proprietor charge against Lucky Engineering suffers from the same defect.  That being the case, Lucky Engineering’s appeal must also be allowed.  It is unnecessary to deal with Mr Alexander King SC’s other submissions on this charge.

35.  In Government’s printed case, it was submitted that if one proprietor has committed a s 6A offence at a construction site then all other proprietors on site could be charged under s 13.  Sensibly, Mr Pang did not press that argument.  I would not read “every proprietor” literally.  There is no reason why, for example, a sub-contractor for the removal of rubble from a site should be responsible for the acts or omission of a sub-contractor for installation of claddings. 

Strict Liability

36.  The question whether s 13 was an offence of strict liability was raised. 

37.  On a charge under s 13, the prosecution must prove that an offence against the Ordinance, in this case, an offence under s 6A has been committed, unless that is proved, the s 13 proprietor would not be guilty of a like offence.  Mr McCoy submitted that since s 6A requires a proprietor to do what is reasonably practicable, the proprietor charged under s 13 should have a similar defence.  He accepted 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.  Although it is not necessary to decide the point, I am inclined to the view if the s 13 proprietor contests liability on the basis that the s 6A proprietor had done what was reasonably practicable, the onus is on the s 13 proprietor.  If that is established on a balance of probabilities, no offence under s 6A would have been committed and the s 13 offence would fail for want of a predicated offence.  I am inclined to this view because s 13 provides that the s 13 proprietor would be guilty of a like offence, in other words an offence which should in all respects, including the onus of proof, be the same as the s 6A offence.

38.  Otherwise, I have no doubt that s 13 imposes strict liability for precisely the reason given by Mr Justice Ribeiro PJ in Hin Lin Yee v HKSAR (2010) 13 HKCFAR 142 at 195 namely:

“… 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.”

39.  I note that s 13 also provides that the s 13 proprietor shall be liable to the same penalty and that depending on the circumstances, the penalty includes custodial sentences.[16] We have heard no submission on the question of penalty under s 13, in particular, whether, and if so, under what circumstances, a s 13 proprietor might be liable to a custodial sentence and I express no view on it.

B.    As contractors

40.  In FACC 4/2012 we are concerned with Regulations 38A(2) as well as 38B(1) and in FACC 5/2012, Regulation 47(1).  There is no issue that there have been contravention of these Regulations.  The issue is whether Paul Y or Lucky Engineering was the contractor responsible for the relevant construction site.

41.  Regulation 38A(2) provides:

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

 38B(1) provides:

“Subject to paragraphs (2), (3) and (4), the contractor responsible for any construction site shall take adequate steps to prevent any person on the site from falling from a height of 2 metres or more.”

42.  Regulation 47(1) provides:

“Where workmen employed at the construction site are liable to come into contact with any live electric cable of or apparatus, the contractor responsible for the site shall, ... take such measures ... as will prevent them from being endangered by the cable or apparatus.”

43.  Regulation 2(2) provides for the purposes of these regulations:

“(a) a contractor is responsible for a construction site if he is undertaking construction work there or, where there is more than one contractor undertaking construction work at the site, if he is the principal contractor undertaking work there;

(b) a contractor is responsible for any plant referred to in these regulations  if it is located at a construction site for which he is responsible. ”

44.  In the Regulation, “construction site” means “a place where construction work is undertaken and also any area in the immediate vicinity of any such place which is used for the storage of materials or plant used or intended to be used for the purpose of the construction work”.  Construction work is defined in the Ordinance to mean: 

“(a) the construction, erection, installation, reconstruction, repair, maintenance (including redecoration and external cleaning), renewal, removal, alteration, improvement, dismantling, or demolition of any structure or works specified in the Third Schedule;

(b) any work involved in preparing for any operation referred to in paragraph (a), including the laying of foundations and the excavation of earth and rock prior to the laying of foundations;

(c) the use of machinery, plant, tools, gear, and materials in connexion with any operation referred to in paragraph (a) or (b).”

45.  It is clear these regulations cast a wide net.  Thus, Hooper J explained in A-G v John Lok & Partners & Others [1986] HKLR 325 that a contractor undertakes construction work if he is managing, organizing or supervising etc the work: at 335G.  John Lok rightly decided that one could be a responsible contractor although one was not carrying out any actual physical work.

46.  Mr McCoy relied on the following passage from the judgment of Hooper J in John Lok that such Regulations:-

“… are clearly concerned with safety in construction sites and to fix liability for failure to comply with the regulations on the contractor with the greatest responsibility at the construction site. That responsibility is intended to cover the whole site, and is not limited to any particular part of it. …” (Mr McCoy’s emphasis).

47.  Mr McCoy submitted it followed that the principal contractor as the contractor responsible must be responsible for the whole physical site and that since Paul Y was only concerned with the carcass work that was not sufficient.  I do not agree.

48.  Hooper J’s statement was made in response to the magistrate’s finding that the principal contractor did not come within the term “contractor responsible” because that applied only to a contractor carrying out the actual physical work.  In that context, Hooper J said the term “contractor responsible” referred to a contractor whose responsibility covered the whole site and not just the contractor who did the physical work. 

49.  Take the case of a large site on which two towers are being built and where there is a principal contractor for the building of each tower.  In such a case, there is no reason why each principal contractor could not be the principal contractor in respect of its tower and as such be regarded as the contractor responsible for such tower. Indeed, the definition of “construction site” as “a place where construction work is undertaken” supports the view that there could be more than one construction site at any place where more than one type of construction work is being undertaken.  Or, as Mr Justice Ribeiro PJ pointed out, in the case of a large undertaking, such as the building of the Chek Lap Kok Airport, there could be many construction sites.

Paul Y’s Appeal

50.  Paul Y entered into a Carcass Work Contract with CKCM on 6 October 2006 for the carcass work at the Homantin site.  CKCM was the Employer’s Representative and signed the contract as such.  The terms of the contract included carrying out aluminium cladding installation works at the location.  Under the contract, Paul Y was obliged, inter alia, to:

“5. … provide all necessary attendances, co-ordination, liaison and such other works as necessary for obtaining Phased Occupation Permit(s) from Buildings Department.”

51.  Paul Y sub-contracted the aluminium cladding installation works to HH Robertson. HH Robertson then sub-contracted part of the aluminium cladding installation works to Ka Shing. According to PW1, the Contract Manager of HH Robertson, Paul Y was the “main contractor” of HH Robertson and HH Robertson was a sub-contractor.

52.  I have no doubt Paul Y was the contractor responsible for the carcass work of which the aluminum cladding work formed part.  The fact that the owner had appointed an owner’s or employer’s representative is irrelevant to the question whether Paul Y was the principal contractor.  CKCM signed the contract with Paul Y as agent of the owner of the site at Homantin.  Regulation 2(2) does not require a direct contractual relationship between the principal contractor and all the other contractors.  I would dismiss Paul Y’s appeals regarding these charges.[17]

Lucky Engineering

53.  This case arose out of an industrial accident which resulted in the death of Shek Yuk Ming (“the deceased”). 

54.  The background facts are complicated and this summary is based on the evidence found by the magistrate as well as the technical report prepared by Mr Siu Kam-wah (PW8), senior electrical engineer of the Labour Department, whose evidence was accepted by the magistrate. 

55.  In 2008, the Jockey Club decided to upgrade the lighting system at a wooden catwalk area at its Clubhouse at Shan Kwong Road, Happy Valley, and awarded the contract to do so to Lucky Engineering in August 2008. In the course of the contract, the Jockey Club decided to improve the lighting system at the indoor swimming pool area and employed Duo Lighting Design and Associates (“Duo Lighting”) to design the lighting.  The original design provided for the installation of 32 black lights.  Lucky Engineering were instructed to install them under their contract with Jockey Club.  After completion, they were found to be too dim and Duo Lighting recommended the installation of 18 grey lights at the Catwalk.[18] Because Lucky Engineering did not have enough manpower or time to install the grey lights, and declined to do so, the Jockey Club’s project manager (PW1) asked Lumen Arts Hong Kong Ltd (“Luman Arts”) (the supplier of the 18 additional lights) to find another party to install the grey lights and to work with Lucky Engineering who were to provide the power supply for the grey lights.[19]

56.  Lumen Arts’ director Szeto Tin Chung (PW2) asked the deceased to install the grey lights.  The deceased went to the Clubhouse with PW2 to check out the condition of the site and started work on 30 October 2008.  The deceased was told by PW2 to approach Lucky Engineering for cooperation and co-ordination for the work to be done in time for the formal opening.  The deceased’s work included the connection of the grey lights power cords to the adaptable boxes for electricity supply.  Unfortunately, in the connection to grey lights No 6 and No 7, the phase and earth conductors were mistakenly interchanged at the point of connection to the relevant adaptable box. 

57.  In the evening of 30 October 2008, the deceased was electrocuted when he touched the live metal bolt on the floodlight casing on grey light No 6 when he tried to adjust the angle of the floodlight.  This is what Mr Siu (PW8) said in his report:

“4.22 Based on the above D/Ts by Mr HO Pong-kit, Mr LOK Chun-yu and Mr Szeto Tin-chung, the autopsy report as well as the circumstantial evidence collected during the site investigation, it was believed that someone energized some of the floodlights including Floodlight No 6 (which was connected to the ‘B7-3Y’ MCB) in the 4/F switch room without checking the electric wiring of the floodlights. The responsible contractors and registered electrical workers also did not carry out the necessary electrical tests for the associated electric circuits before energizing the ‘B7-3Y’ MCB. As such, the casing of Floodlight No 6 became live at the time of accident due to the mistake made in the wiring connection at the respective adaptable box as mentioned in para 4.15 above. The D/P was suspected to have received an electric shock by touching the live metal bolt on the floodlight casing when he tried to adjust the angle of the floodlight.

…

5.2 … it was not clear who carried out the connection at the adaptable box. Nevertheless, the mistake could be easily discovered by visual inspection at the adaptable box. …

…

5.4 Prior to the energisation of the power supply to the floodlights, the contractors and the responsible (registered electrical worker) concerned should ensure that all safety precautions had been taken to avoid danger. In particular, it was necessary to completely test all electric circuits for the 250W floodlights and 400W floodlights in accordance with Code 21 of the COP[20] before energisation. …

…

6.1   Prior to energisation of the power supply to electrical installation, the contractor … should ensure that all safety precautions had been taken to avoid danger. …” 

58.  Lucky Engineering had a site agent So Hon Fai (PW3).  He was responsible for overseeing the progress of the works.  His evidence was that he inspected half of the adaptable boxes:

“24 … by doing the insulation test and checking whether the connections were properly done. …”

59.  Had proper testing taken place, it seems clear that the accident would not have occurred.  That may explain why Lucky Engineering sought to show at trial (but was unsuccessful) that the deceased was electrocuted by a separate and independent power source, in other words, not by the electricity supply for which it was responsible.

60.  It is clear from the statement of findings that PW3’s evidence was that:

“28 … he was told by a worker of Wah Yip to turn (on the electricity supply) to carry out some tests. He saw the floodlights were on in consequence of that.”[21]

61.  Mr Siu (PW8), stated in his report that:

“5. … The root cause of the accident was due to the default of the concerned contractors and the registered electrical worker who was responsible for the electrical wiring work at 4/F switch room and the Catwalk because they should not allowed (sic) the electric circuits for the 250W and 400W floodlights to be energized without proper testing. In addition, they had not taken all safety precautions to isolate all outgoing electric circuits from 4/F switch room to the floodlights to prevent the circuits from becoming live when the electrical wiring and installation work for the floodlights were in progress.”

62.  It is against this background that one considers whether Lucky Engineering were the contractor responsible for the construction site where workmen employed thereat were liable to come into contact with any live cable.

63.  Mr King’s primary submission was that since Lucky Engineering was not responsible for the installation of the grey lights, these grey lights were outside any construction site for which Lucky Engineering was responsible.

64.  With respect, that overlooks the critical fact that Lucky Engineering was responsible to provide the power supply for the grey lights and that it was the power supply which electrocuted the deceased.  It is clear from the statements in Mr Siu’s report quoted above, that the root cause of the accident was that Lucky Engineering which was responsible for the power supply allowed the electrical circuit of the black and grey lights to be energized without proper testing.

65.  What was the construction site for the purpose of this charge is a question of fact.  On the evidence, the learned magistrate was perfectly entitled to find that Lucky Engineering was responsible for the construction site which included the grey lights.

66.  For the above reasons, I would dismiss Lucky Engineer’s appeal against the contractor charges.[22]

Drafting of charges

67.  Prosecutions for offences under the Ordinance (which includes the Regulations) may be brought in the name of the Commissioner for Labour and conducted by any officer of the Labour Department.[23] Charges should be properly formulated, but they should not be overly technical.  If the defence regards any charge to be unclear, it should seek clarification.  Any necessary amendment could then be made.  In these appeals, the charges were couched in general terms.  No point was taken, rightly so, because the parties were not in doubt of the substance of the charges which they had to meet.  However, in the case of the s 13 charges, it is obvious that they were based on a misunderstanding of s 6A and s 13.  It is hoped that as a result of these proceedings, charges under s 13 where an offence under s 6A was the predicated offence would be properly framed.  I also respectfully agree with Mr Justice Chan PJ’s observations.

The Questions of Law

68.  I turn to the questions of law identified in para 7 above and answer them thus:

(a) Yes, but only insofar as the proprietor could be properly regarded as coming within s 13.[24]

(b) It would be a defence that the predicated offence has not been committed.[25]

(c) A contractor could be regarded as the contractor responsible even for contractors who had no direct contractual relationship with him that were sub-contractors of its own contractors and so on.[26]

(d) No.[27]  The question does not arise in this case.

Disposition

69.  The appeals in respect of the charges stated in para 10(1) and 11(1) above are allowed.  The appeals in respect of the charges stated in para 10(2) and (3) and para 11(2) are dismissed.

Mr Justice Litton NPJ :

70.  I agree with the orders proposed by Mr Justice Tang PJ and confine my remarks to the summonses where the Appellant was charged as proprietor of an industrial undertaking under the Factories and Industrial Undertakings Ordinance, Cap 59.

The Charge Against Paul Y

71.  In respect of Paul Y General Contractors Limited the charge says that Paul Y:

“being a proprietor of the industrial undertaking, namely THE INSTALLATION OF ALUMINIUM CLADDING PANELS TO THE ROOF FEATURE ON TOWER 2 at THE PROPOSED RESIDENTIAL DEVELOPMENT AT KIL 11124 … did fail … etc”

72.  To the ordinary person, when it is said that someone is the proprietor of an industrial undertaking – in Chinese 工業經營– he would take it to mean some sort of enterprise or business of which that person is the owner.  And as regards the installation of aluminium cladding panels referred to in the summons, he would understand that to mean the activity undertaken by that person’s business of installing panels.  He would then be reinforced in this understanding when he goes on to read the rest of the summons where it says:

“… did fail to provide and maintain A SYSTEM OF WORK IN RELATION TO THE INSTALLATION OF ALUMINIUM CLADDING PANELS … that were, so far as was reasonably practicable, safe and without risk … etc”

This must mean the activity of installing panels where the proprietor’s safety system was defective.

73.  The prosecution says that in the Factories and Industrial Undertakings Ordinance the expression “industrial undertaking” has an extended meaning.  It can also mean:

“(i) any premises or site in or upon which … any of the foregoing industrial undertakings is carried on”.

And when one looks at the “foregoing industrial undertakings” one sees in the definition:

“(e) any construction work.”

74.  So now, to read the summons correctly, where it says “being the proprietor of the industrial undertaking”, it means that Paul Y is charged with being the “proprietor” of the site in which construction work was carried on.

75.  Pausing here, if that is what the charge is meant to say, why does it not say so?

76.  But that creates another problem in this case.  The “construction work”, that is to say, the installation of aluminium cladding, was being done by workmen employed by Ka Shing, the sub-contractor of HH Robertson, up at the roof of Tower 2.  So it may well be that Ka Shing was a “proprietor” of the site up at the roof at the material time, owing a duty to ensure as far as practicable the health and safety of the men employed by him, under s 6A of the Ordinance.

The Offence Under s 13(1)

77.  Now, the charge against Paul Y as proprietor is laid under s 13(1).  An ingredient of the offence is that another “offence against this Ordinance has been committed”, before Paul Y could be guilty of the “like offence”.  The offence under s 13(1) is derivative.  Where s 13(1) speaks of “offence against this Ordinance” it includes any subsidiary legislation made under the Ordinance[28].  Hence, if it was alleged in the summons that Ka Shing, being the contractor responsible for the aluminium cladding work, breached Reg. 38B of the Construction Sites (Safety) Regulations made under the Ordinance, in that Ka Shing had failed to take adequate steps to prevent his workmen falling from a height of 2 metres or more, then Paul Y would be guilty of “the like offence” if they were “proprietors” of the “industrial undertaking”.  But that is not how the charge was framed.  It must necessarily fail.

The Charge Against Lucky Engineering

78.  A similar defect afflicts the charge laid against Lucky Engineering Co Ltd, though the wording of that summons is rather different.  There, it is alleged that Lucky Engineering:

“being a proprietor of the industrial undertaking, namely, LUCKY ENGINEERING COMPANY LIMITED at HAPPY VALLEY CLUBHOUSE ... did fail to provide A SYSTEM OF WORK FOR THE INSTALLATION OF 18 Nos 400W-FLOODLIGHTS … etc”

79.  Here, the ordinary person might understand on reading the summons that the “industrial undertaking” named in the summons is the business of Lucky Engineering: The summons says “namely, Lucky Engineering Co. Ltd” but it must mean the business of the company carried on at the Happy Valley Clubhouse.  Taking the extended definition of “industrial undertaking” as explained in para 73 above, one could then construe the summons as saying that Lucky Engineering, being the proprietor having the management or control of the business carried on in the site where construction work was taking place, did fail to provide a system of work, etc.  The “site” was the catwalk above the swimming pool and the construction work was the installation of the 18 400-W grey lights.  If Lucky Engineering was the “proprietor” of that work site, then it might be derivatively liable under s 13(1).  But, again, that charge fails because there is no averment as to who had committed an offence against the Ordinance to make Lucky Engineering derivatively guilty as proprietor of the industrial undertaking under the Ordinance.

Charging Persons as “Proprietors”

80.  As can be seen, the charges laid under s 13(1) are highly artificial.  The Ordinance defines “proprietor” in relation to an industrial undertaking as including:

“… the person for the time being having the management or control of the business carried on in such industrial undertaking …” (emphasis added).

81.  Now, here, as regards Paul Y, who were general contractors responsible for building the entire superstructure of Tower 2 from the foundations upwards, it might be said that their business was being carried on up at the roof where the accident occurred, and hence “in such industrial undertaking”, in line with the statutory definition of “proprietor”.  And, in relation to Lucky Engineering, which had the contract from the Jockey Club to upgrade the lighting system generally, and had a site agent So Hon Fai (PW3) on the ground, it could be said (in fact it was so alleged in the summons) that they carried on business at the catwalk where the fatal accident occurred.

82.  But could the same be said of Shek Yuk Ming (the deceased) who, at the request of Lumen Arts (the supplier of the 18 grey lights), had undertaken the job of installing those lights, and had then gone to the Clubhouse with a workman (PW4) on 30 October 2008 to do the work.  Assuming it had been PW4 who was killed, could Shek Yuk Ming have been deemed a “proprietor” who had failed to ensure the safety of PW4, under s 6A of the Ordinance?  Would Shek have been held to have had the “management or control of the business” carried on by him at the catwalk?  To the ordinary person, it might have seemed a trifle too grand to say that Shek was “carrying on a business” at the catwalk when, in truth, he was just doing work there and got someone else (PW4) to help him.

83.  As I understand it, the Labour Department, prior to the observations of McMahon J in HKSAR v China Overseas Building Construction Ltd [2007] 2 HKLRD 216 at 223, did not use s 13(1) to charge offenders in cases such as these.  No wonder.  It is not a provision which is easy to operate.

84.  Note this: Under the Ordinance, there is a distinction between “proprietor” and “owner”, though to an ordinary person the expressions may seem interchangeable.  In the Factories and Industrial Undertakings (Suspended Working Platforms) Regulation, “owner”, in relation to any suspended working platform, is defined as including the lessee etc or person in charge or having control or management of the suspended working platform, and the contractor who has control over the way any construction work which involves the use of the suspended working platform is carried out and, in the case of a construction site, includes the contractor responsible for the construction site.

85.  In China Overseas Building Construction Ltd the person targetted, the “owner”, is linked to the suspended working platform, the object which might cause danger to safety.  In contrast, under the Ordinance, the scope of responsibility of a “proprietor” is ill-defined and amorphous.

86.  Here, I have no doubt that the Appellants were properly convicted as “contractors” for the reasons given in Part B of Mr Justice Tang PJ’s judgment.  The convictions, flowing from the facts as found by the magistrates, were straight-forward, and so were the summonses the Appellants faced.  But charging them as “proprietors” was another matter.

The Rule of Law

87.  As I observed in Jetex HVAC Equipments Ltd v Commissioner for Labour [1995] 2 HKLR 24 at 25 informations are laid by officers of different departments of government on a daily basis in order to enforce the law and preserve the fabric of civil society in Hong Kong.  Jetex was also a case dealt with under s 6A of the Factories and Industrial Undertakings Ordinance.  The information was laid by a labour officer, as it was in this case.  But there are many other statutes affecting municipal services, health and hygiene etc which are also administered by middle-ranking officers who enforce the law where necessary by laying informations in the magistracies.  All one needs to do is to glance at, say, the Waste Disposal Ordinance, Cap 354 or the Public Health and Municipal Services Ordinance, Cap 132 to see how important it is that such statutory responsibilities are discharged effectively.  This is an important aspect of the rule of law in Hong Kong.

88.  And here we are, in this case, in the highest court in the land, struggling to make sense of the “proprietor” charges against the Appellants through the medium of the English language.  By and large, the statutory schemes are administered by the various government departments using Chinese as their working language.  Meaning can be lost in translation.  The majority of the cases prosecuted through the magistrate courts are done in Chinese.  Hence, it is crucial that the statutory language should be simple, and charges are laid in plain language which everyone can understand.

89.  In a case such as this, it adds unnecessary complication to charge the Appellants as “proprietors” where, on the facts, they plainly had responsibility as contractors over the sites concerned.

Mr Justice Gleeson NPJ :

90.  I agree with the judgment of Mr Justice Tang PJ.

91.  I also agree with the observations of Mr Justice Chan PJ.  The charges laid against the appellants under s 13 of the Factories and Industrial Undertakings Ordinance, Cap 59, alleged offences of a hybrid nature, conflating the provisions of ss 6A and 13, and failing to distinguish between the primary offence, under s 6A, and what might be called the derivative offence, under s 13, of which the primary offence is an element.  In respect of those charges, the appellants were convicted of offences not known to the law, and their appeals must be allowed.

Mr Justice Chan PJ :

92.  The appeals in respect of the charges stated in para 10(1) and 11(1) above are allowed.  The appeals in respect of the charges stated in para 10(2) and (3) and para 11(2) are dismissed.

93.  Should any party wish to apply for costs, application should be made in writing within 14 days of today, replies, if any, within 7 days thereafter.