HKSAR v. HIP HING CONSTRUCTION CO. LTD.

HCMA 1253/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1253 OF 2000

(ON APPEAL FROM SPS 5466/2000)

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J U D G M E N T

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1. The Appellant, a limited company, was convicted after trial on an information before a magistrate at San Po Kong of an offence committed on 8 October 1999 (at a construction site for which it was responsible and where work could not be safely done on or from the ground or from part of a permanent structure) of failing to provide, and to ensure the use of a scaffold which was safe for the purpose, having regard to the work to be done - contrary to Regulation 38C of the Construction Sites (Safety) Regulations (Chapter 59).

2. The Appellant which was fined $20,000.00 appeals against this conviction.

Background

3. The information was laid against the Appellant following an accident when a worker, engaged in the construction of a residential development in Choi Hung Road in Kowloon, fell from the 23rd floor of the building onto a scaffold some 5 floors below.

4. The building was being erected by means of 'formwork' i.e. wooden planks were used to shape the concrete walls on each floor of the construction and once that concrete had set, the planks were removed and taken up to the next floor to be used again for shaping the concrete walls there.

5. The Appellant was the contractor responsible for the construction site. It subcontracted the transportation of the wooden planks for the formwork erection and its dismantling to one CHAN Sai Sau (the 3rd witness called in the trial by the prosecution) by way of two intermediate sub-contractors.

6. By the 8 October 1999 formwork planks or boards were being dismantled on the 26th floor of the building and were being taken to higher levels. The evidence before the learned magistrate was that CHAN Sai Sau, who was responsible for this work, told one of his workers during a tea-break on the 26th floor to go down to the 23rd floor to collect any wooden boards used in the formwork construction which had fallen down into some netting outside the building structure and the scaffold and that worker went to do so. Subsequently there was a shout and the sound of someone falling, and the worker concerned appeared to have fallen from the 23rd floor onto the scaffold between the 18th and 19th floors outside flat C where there was a catch fan. His co-workers rushed down to give him assistance and they managed to bring him into the building. He was still conscious and he was wearing a safety belt around his waist.

7. As to the scaffolding erected around the building this was double row below the 18th floor. Above that it was single row. Formwork dismantling between the 18th and 23rd floors had been completed by the 8 October and it had been taken higher up the building.

8. On the 8 October the only work being done outside the building was formwork delivery to higher floors.

9. Before the learned magistrate certain facts were admitted; some photographs and at least one working manual were produced and 6 witnesses gave evidence for the prosecution. The Appellant elected not to call witnesses or adduce evidence.

10. Before coming to the grounds of appeal upon which the Appellant relies, I set out hereunder not only Regulation 38C which is directly pertinent to this appeal but also Regulation 38B. There is some overlapping between these two regulations breach of either of which can be met by the defence provided for in Regulation 38H which I also recite:-

"38B. Prevention of falls

(1) 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.

(2) For the purpose of paragraph (1), "adequate steps" (足夠的步驟) shall include the provision, use and maintenance of one or more of the following-

(a) working platforms;

(b) guard-rails, barriers, toe-boards and fences;

(c) coverings for openings;

(d) gangways and runs.

(3) Paragraph (1) shall not apply to any opening, corner, break or edge exposed in the course of demolition operations if adequate precautions have been taken to prevent any person from being exposed to the risk of falling therefrom.

(4) Every working platform (other than a suspended working platform), guard-rail, barrier, toe-board, fence, covering for an opening, gangway or run provided for the purpose of paragraph (1) shall comply with the provisions of the Third Schedule applicable to it.

(5) For the avoidance of doubt, it is hereby declared that-

(a) paragraphs (2) and (4) do not prejudice the generality of paragraph (1);

(b) the reference to working platform in paragraph (4) does not prejudice the operation of the provisions of the Factories and Industrial Undertakings (Suspended Working Platforms) Regulation (Cap 59 sub. leg.) in relation to a working platform which is a suspended working platform.

38C. Safe means of support

Where work cannot be safely done on or from the ground or from part of a permanent structure, the contractor responsible for the construction site concerned shall provide, and ensure the use of, a scaffold, ladder or other means of support, all of which shall be safe for the purpose, having regard to the work to be done.

38H. Defences to regulations 38B and 38C

(1) It shall be a defence for a contractor charged with an offence under regulation 38B(1) or 38C to show-

(a) that in all the circumstances of the case, it was impracticable to comply with all or any of the requirements of that regulation;

(b) that-

(i) the contractor provided suitable and adequate safety nets and safety belts in lieu of complying with those requirements; or

(ii) in all the circumstances of the case, it was impracticable to provide such safety nets and the contractor provided suitable and adequate safety belts in lieu of complying with those requirements; and

(c) that all reasonably practicable steps were taken to ensure the proper use of the safety belts by the persons to whom they were provided."

11. The grounds of appeal argued before me by Mr Jenkyn Jones on behalf of the respondent are as follows:-

"The conviction is unsafe and unsatisfactory in that:

1. (a) The Learned Magistrate erred in his assessment and analysis of the Prosecution evidence, which was focused confusingly on the requirements of Regulation 38B(1) & (2) Construction Sites (Safety) Regulations Cap. 59 rather than the actual charge under Regulation 38C.

(b) In particular the Learned Magistrate erred in finding "that the retrieval of all fallen wooden parts of the formwork was an integral part of the work to be done, such a finding being contradicted by and clearly qualified and restricted by other prosecution evidence, so as to directly impinge on an essential ingredient of the charge, namely "having regard to the work to be done."

(c) The Learned Magistrate further erred in his acceptance and reliance upon PW6's evidence, which (despite clear unresolved contradiction by other Prosecution witnesses) was non specific to the charge, and was in any event highly selective, speculative inconclusive and unhelpful.

(d) The Learned Magistrate erred in particular in relying upon PW6's evidence that "the risk of falling from a single row scaffold was high" and concluding therefrom that a single row scaffold was "unsafe" within the term of Regulation 38C and that a double row scaffold was therefore required. The context of PW6's evidence did not permit such a conclusion.

(e) The Learned Magistrate further misdirected himself (as a result of PW6's evidence) as to the significance for the purpose of Regulation 38C between a single and a double row scaffold.

2. When considering the elements of statutory defence under Regulation 38H CS(S)R, the Learned Magistrate;

(a) misdirected himself that the issue of "practicability" related to the building of a double row scaffold.

(b) erred in determining the issue of practicability by balancing factors of inconvenience, time and expense against what he had already wrongly found to be a "high risk" on the other hand. The earlier erroneous finding distorts the proper balance of the factors.

(c) further erred in determining that it was practicable to build a double row scaffold which was in any event an incorrect focus and which was clearly contradicted by prosecution witnesses.

(d) further erred in concluding that suitable and adequate safety belts had not been provided and that all reasonably practicable steps had not been taken; such a finding being contrary to the evidence.

(e) further erred in concluding;

(i) on the basis of PW6's evidence that the safety belts were not suitable or adequate within the terms of Regulation 38H(3). PW6's evidence with regard to "continuity" was hypothetical and speculative and qualified in its ambit and was in any event undermined and unsupported by official government publications such as Exh P9

(ii) that the scaffold by virtue of being a plant, namely bamboo was not secure, such conclusion being personal and unscientific and in any event contrary to clear evidence as to strength and integrity and certificated inspection thereof.

And in all the circumstances the conviction is unsafe and unsatisfactory."

12. In his lengthy and helpful Statement of Findings the learned magistrate sets out a useful summary of the evidence presented during the trial before turning his attention to his findings.

The Evidence

13. Inter alia he recites from the evidence that the first prosecution witness, an occupational safety officer employed by the Labour Department, agreed in cross-examination that, when removing formwork boards it was not appropriate to have a double row scaffold because its inner layer would press against the boards and prevent their removal. He disagreed, however, with the suggestion put to him that a single row scaffold without working platforms was suitable for formwork delivery and he was somewhat ambivalent about the use that could be made of air conditioning ledges and window sills as temporary working platforms.

14. This witness told the court in re-examination that when he visited the site after the accident there was no working platform on the single row scaffold between the 18th and 23rd floors.

[I just add here that if that last piece of evidence was accepted it would not be surprising because by then the formwork on those floors had been removed to higher up the building and any temporary platforms which may have been used for the transport of that formwork would also have been dismantled. That evidence also shows quite clearly that whatever the worker who fell might have done leading to his fall he did not rely or seek to rely upon any working platform.]

15. One of the formwork employees who had been working with the injured man on a higher floor told the court, inter alia, that when he was working on the scaffold he always wore a safety belt which he attached to that scaffold. He also said that formwork delivery work required one person to be outside the wall of the building and that a double row bamboo scaffold would not have interfered with the actual delivery of the formwork.

16. CHAN Sai Sau the man with the immediate responsibility for the upward removal of the formwork told the court, inter alia, that although the injured man was not his employee he paid his wages and it was he who told that man to go down to see if he could recover any formwork boards on the day in question. Perhaps more importantly this witness told the court that the way to retrieve such boards was to climb out of a window onto the scaffold wearing a safety belt which would be then locked onto the scaffold itself.

17. Cross-examined he said that the workers were frequently reminded to ignore boards which were in a dangerous place and that a double row scaffold would have restricted the space needed to do formwork delivery work.

18. The Appellant's senior safety officer who was called to give evidence for the prosecution told the court in cross-examination that there was no double row scaffold above the 18th floor because it would have prevented the workers - not from delivering the formwork but - from dismantling it after it had served its purpose.

19. He also said that the Labour Department had not insisted upon the installation of a double row scaffold before removing the suspension notice which it had issued following the accident and that the subcontractors had all been told that there was to be no external work carried out without there being a working platform.

20. In a statement admitted into evidence for the prosecution by agreement the Appellant's site agent said, inter alia, that it would be extremely difficult to dismantle formwork if a double row scaffold was erected.

21. Another witness, who was tendered for cross examination, said that normally a working platform would consist of a single row scaffold combined with air conditioning ledges and window sills and that a safety booklet (Exhibit D1) which among other things gave instructions on working at heights and the use of safety belts had been issued to all of the workers.

22. In answer to a question from the learned magistrate this witness said that the responsibility for the recovery of fallen formwork boards lay with the formwork delivery workers who would construct a working platform to retrieve it. He went on to say however that it was practicable to work with a safety belt securely anchored and without a working platform.

23. A senior divisional occupational safety officer gave evidence as an-expert. Summarizing his evidence for present purposes he told the court that the use of single-row scaffolding for transporting and dismantling formwork materials was extremely hazardous: that a proper working platform was necessary and that double row scaffolding with full planking would have served that purpose.

24. When cross-examined (and judging from the transcript of his evidence this was a somewhat tortuous process) the witness agreed that there was no evidence that the scaffold itself was either weak or insecure.

25. He further said that whether a single-row scaffold plus a protuberance from the wall could constitute a proper working platform would depend on the nature of the protuberance itself.

The Findings

26. The findings of the learned magistrate can, I think, be fairly summarised as follows:-

1. The scaffold provided was not safe for the purpose, having regard to the work to be done.

2. The collection of fallen materials was an integral part of the transportation process.

and 3. A double row scaffold [presumably with planking] was practicable and even if it was not the Applicants had failed to comply with Regulation 38H(1)(b) and (c) which deal with the provision and use of safety belts and nets.

Conclusions

27. I may have missed a point in the course of the very able argument presented by both counsel in this appeal, but I still do understand why it was that the only information laid against the Appellant was that in respect of Regulation 38C and that being the case why so much significance was then attached to Regulation 38B.

28. This has caused me considerable confusion and, I venture to suggest, in the light of the evidence of the prosecution expert, that what Mr Jenkyn Jones would no doubt describe as a 'misdirection of focus' ensued. It undoubtedly blurred the real issues.

29. Of course there is, as I have said, some overlap of these Regulations and Regulation 38A(1) reads as follows:-

"Without prejudice to the other provisions of this Part, the contractor ... shall ensure that every place of work on the site is, so far as reasonably practicable, made and kept safe for any person working there."

30. That said, the terms of the information in this case were specific -

"that you on 8 October 1999 at ... where work could not be safely done on or from the ground or from part of a permanent structure did fail to provide, and ensure the use of, a scaffold, which was safe for the purpose, having regard to the work to be done."

31. It must follow that before the Appellant could be convicted of such an offence the prosecution would have to prove that (subject to the question of practicability) on the 8 October the scaffold was unsafe for the delivery of the formwork materials and, if such work included the collection of materials which had fallen down then, it was unsafe for that purpose as well.

32. The prosecution's approach to this task appears to have been to say that firstly because a worker apparently went out onto the scaffold where there was no platform - or attempted to do so without first securing a safety belt (which would not have to be released and then reattached) - and he fell, - and because it is inherently dangerous to climb up single row bamboo scaffolding whilst at the same time carrying formwork materials, then the scaffold was unsafe for the purpose of that work and therefore there was a breach of Regulation 38C.

33. It seems to me that one difficulty with that two pronged or duplicitous approach so far as the Appellant was concerned is this. On the evidence before the learned magistrate it was open to him to conclude that the scaffolding (which was of itself secure and safe) was unsafe when used for the delivery of formwork without the additional use of temporary platforms; that it was unsafe even with that use by reason of the nature of those platforms; that the scaffold would only be safe if it was of the double row type with interlocking planks and that in addition or alternatively the scaffold without a platform was unsafe for the particular purpose which the fallen worker presumably intended to use it.

34. In those circumstances it would be incumbent upon the learned magistrate to consider the statutory defence provided by Regulation 38H separately in respect of each prong of the prosecution's attack.

35. The prosecution in this case went further by inviting the learned magistrate (based principally, if not wholly, on the evidence of the 'expert'), to consider (when determining whether or not the scaffolding was safe) the 'adequate steps' provisions of Regulation 38B, no information as I have said ever having been laid against the Appellant under that Regulation.

36. It is apparently so, as Mr Jenkyn Jones complains, that the initial focus of the prosecution's case was on the fact that a person had seemingly fallen from a scaffold at a point on which there was no working platform and further that a double row scaffold would have provided such a platform - at that point.

37. This is plain from a reading from the transcript of an exchange between Mr Jenkyn Jones and Labour Department's Occupational Safety Officer as follows:-

"O. ... why, for formwork delivery, was the scaffold in this case not safe?

A. Well because during my investigation I did not see how they did the process of transporting formwork.

O. Right, so it's a guess. It might not have been safe. Is that what this summons is about?

A. Well, no.

Q. Well why is it not safe?

A. Well ... it is about the accident which occurred when someone picked up some building materials ... from the external wall, and the scaffold outside the wall was unsafe and unsuitable for this purpose, so that is why we issued this summons.

O. Is it suggested that a working platform should have been built for this person to collect this single piece of rubbish?

A. Well, it should be the case and that it is not one particular piece, but that there were many pieces, as many wooden planks and debris were hanging from the green net outside [the] wall."

38. As regards that focus the Appellant's case was (if I have understood it correctly) that indeed there was no such platform for that purpose: that the worker concerned had no business in going out - or attempting to go out onto the scaffold for that purpose; that it was a specific instruction from the Appellant that no worker was to go outside the wall unless there was a platform and that the Appellant cannot be held responsible if the worker in question chose to do so with or without a safety belt.

39. The prosecution, in the person of the 'expert', then altered its focus from the lack of the working platform at the point where the worker fell, to the safety or otherwise of the single scaffolding as a whole when it was being used - not to collect fallen planks - but to transport or deliver formwork materials upwards. And it was in the context of that focus that evidence was elicited from the 'expert' to the effect that it was unsafe to transport formwork materials upwards on a single row scaffold without any working platforms albeit that the evidence was that temporary working platforms were used for this purpose.

40. The learned magistrate appears, based on the hypothetical evidence of the 'expert' to have found either that no such platforms were used or that if they were used they were inappropriate in that form and it was in the light of whichever finding he made that he was led from there to consider the practicability of erecting double row scaffolding and/or the provision of continuous lifelines.

41. Putting it another way the prosecution firstly justified its summons by complaining that there was no working platform as required by Regulation 38B near to where the worker fell and then expanding or adding to its complaint by saying in effect that even if such a platform had been there, the rest of the scaffolding was unsafe in the terms of Regulation 38C for delivering formwork upwards assuming (contrary to the evidence) that platforms had not been erected for that purpose.

42. In her submissions before me Ms Pang argued that there were only 3 issues in the trial for determination by the learned magistrate as follows:-

(a) what was the 'work to be done' on the day in question;

(b) was the scaffold (a single row scaffold) safe for that purpose; and

(c) if not, was a statutory defence made out under Regulation 38H

43. With respect the issue at (b) given the way in which the prosecution presented its case cannot, in my view, be so simply stated. There were in fact 2 issues at (b):-

1. "Was the scaffold (albeit single row scaffolding) being used in conjunction with working platforms for upward delivery of formwork and, if so, was that scaffold safe for that work?"

and 2. "Was the scaffold (albeit single row scaffolding) being used in conjunction with a working platform for the collection of fallen formwork and if not was that scaffold safe for that work?"

44. Whilst, as Ms Pang argued that the learned magistrate had stated that:-

"...the scaffold provided was not safe for the purpose, having regard to the work to be done. I accepted PW6's testimony that the risk of a worker losing balance whilst engaged in formwork transportation work on a single-row scaffold was very high."

I repeat that it seems clear from a reading of the transcript that PW6's testimony in that regard was based upon the proposition or hypothesis that no working platforms at all had been used - and that was not the evidence.

45. As regards the statutory defence and the relevance of safety belts Ms Pang submitted that:-

"As regards the provision of safety belts, the relevant requirements are stipulated in Regulation 38H(3). One of those is "they (safety belts) are attached continuously to a suitable and secure anchorage." In this respect, PW6's evidence was that the safety belts provided by the Appellant were not suitable as there was no continuity. ..."

46. Now that may be quite correct in the context of the upward delivery of the materials but only if (which was not the evidence) there were no working platforms being used for that work.

47. Ms Pang went on to say

"... It should be noted that, once the learned magistrate found as a fact that the work involved was formwork dismantling and transportation, he was entitled, based on the entirety of the evidence before him, to conclude that a worker performing that type of external work had to disconnect the belt and find another anchorage point upon changing position. It is absurd to suggest that a worker could - either collect some wooden boards from the scaffold or dismantle formwork boards and deliver them to upper levels without changing position at all."

48. With respect the trouble with that argument is, so it seems to me, that it ignores the difficulty to which I have already made mention in this judgment of the 'duplicity' in the prosecution's approach to this case. If a worker is intent on recovering a fallen plank and he attaches his safety belt to the scaffold for that particular purpose, that probably fulfils the continuity obligation (i.e. he probably does not have to re-anchor the belt's attachment whilst he does that job).

49. However the situation would be completely different if a worker engaged in carrying formwork materials upwards was to rely solely on a safety belt, because in carrying out that work it would be necessary for him to re-anchor the belt's attachment at least at every level of his ascent.

50. At the conclusion of the hearing of this appeal I was left in no doubt that there was considerable merit in it and in the grounds advanced in support of it. It follows that I conclude that the conviction is unsafe and unsatisfactory.

51. Accordingly the appeal is allowed, the conviction is set aside and the fine is quashed.