HKSAR v. HONG DAU CONSTRUCTION CO LTD AND OTHERS

HCMA 186/2017

[2018] HKCFI 1462

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 186 OF 2017

(ON APPEAL FROM ESS NOS 37644 – 37655,
38073 – 3807 AND 38217 – 38221 OF 2014)

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J U D G M E N T

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INTRODUCTION

1.  The subject-matters of this appeal arose from a fatal industrial accident on 25 March 2014 at Tower 3, Tregunter, No 14 Tregunter Path, Mid-Levels, Hong Kong (“the site”) where refurbishment works has been carrying on for more than 17 months.  The accident involved a tower working platform (“TWP”) manufactured by HAKI (model no MA-1200) with machine no TN0094 (“M14”). At all material times, the 1^st appellant (“A1”) was the principal contractor of the site; the 2^nd appellant (“A2”) was the TWP subcontractor of A1 and the 3^rd appellant (“A3”) was a sub-contractor of A1 for refurbishments works of the site.

2.  Prior to the accident, a team of 4 Vietnamese workers (Huynh, Phung, Pham and Vuong) were assigned by A3 to perform plaster refurbishment works at the site.  According to the record, they took M14 to repair the plasters at the external wall.

3.  At about 10:30 am, M14 suddenly snapped into two.  The right-side platform of M14 detached from the central lifting cage and fell from 55/F together with Huynh and Phung.  Both workers were certified dead on the scene.  The other two workers, Pham and Vuong, however, could not be located after the accident.

4.  After investigation by the Labour Department and the Electrical and Mechanical Services Department (“EMSD”) following the accident, A1, A2 and A3 were each prosecuted at the Eastern Magistracy in one trial.  A total of 20 summonses were issued against the three appellants.  A1 faced 10 summonses, A2 faced 8 summonses and A3 faced 2 summonses (as per the table below in para. 5).  All three appellants pleaded not guilty to their respective summonses and the learned magistrate[1] convicted them of all the summonses after a 27 days’ trial.  Each appellant now appeals both against the convictions and sentences.

THE SUMMONSES

5.  The 20 summonses are each given a summons number (Summons 1 - Summons 20) for easy reference during the trial and I shall adopt the same as follows: -

A1

1   ESS 37644/2014  

2   ESS 37645/2014  

3   ESS 37646/2014  

4   ESS 37647/2014  

5   ESS 37648/2014  

6   ESS 37649/2014  

7   ESS 38075/2014  

8   ESS 38217/2014  

9   ESS 38218/2014  

10   ESS 38219/2014  

A2

11   ESS 37650/2014  

12   ESS 37651/2014  

13   ESS 37652/2014  

14   ESS 37653/2014  

15   ESS 37654/2014  

16   ESS 37655/2014  

17   ESS 38073/2014  

18   ESS 38074/2014  

A3

19   ESS 38220/2014  

20   ESS 38221/2014  

6.  As proposed by the respondent in the trial as well as in the present appeal, the above summonses are further divided into five headings as follows:

(1)   “Safe Access/Egress” (A1 and A3), contrary to regulation 38A(2) of Construction Sites (Safety) Regulations (“CSSR”). (Summons 9 against A1); contrary to regulation 38AA(2) of CSSR (Summons 20 against A3).  These two summonses concern with whether there was so far as reasonably practicable suitable and adequate access to and egress from the bamboo scaffold.

(2)   “Safety Management” (A1), contrary to section 8(1) of Factories and Industrial Undertakings (Safety Management) Regulation (“FIUSMR”) (Summons 10 against A1).  The prosecution alleged Al’s failure to develop a set of in-house safety rules to provide instruction for achieving safety management objectives at the site.

(3)   “Safe System of Work” (A1 and A3), contrary to section 6A(2)(a) of Factories and Industrial Undertaking Ordinance (“FIUO”) (Summons 19 against A3); contrary to section 13(1) of FIUO (Summons 8 against A1).  These two summonses concern with the use of TWP and bamboo scaffold for the refurbishment works, and that A3 had failed to provide and maintain, so far as reasonably practicable, a system of work that was safe and without risks to health; and Al committed the like offence committed by A3.

(4)   “Safe Plant” (A1 and A2), contrary to section 7(1)(c) of the Occupational Safety and Health Ordinance (“OSHO”)  (Summonses 1 – 6 against A1 and Summonses 11 – 16 against A2).  These 12 summonses concern with the failure of weld joints at M14, in that signs of failure should have been visible before the accident.  The prosecution alleged that Al and A2, as occupiers of the premises, had failed to ensure, so far as reasonably practicable, M14 was safe and without risks to health.

(5)   “Repair & Maintenance” (A1 and A2), contrary to section 10(a) of Builders’ Lifts and Tower Working Platforms (Safety) Ordinance (“BLTWPSO”) and contrary to section 9(p) of BLTWPSO (Summons 7 against A1 and Summons 18 against A2; Summons 17 against A2).  These three summonses concern with inspection and checking and hence maintenance of M14.  The prosecution alleged that Al and A2 had failed to ensure M14 was properly maintained.

THE WITNESSES

7.  A total of 14 prosecution witnesses were called upon to testify during the trial:

PW1	FONG Kwok-keung	Site Manager of A1
PW2	SHIH Kong-tit	Foreman of A1
PW3	NG Yung-yam	Worker of A3
PW4	ZHEN Ying-pin	Worker of A3
PW5	CHAN Tak-wai	Supervisor of A3
PW6	XIE Hairong	Worker of A3
PW7	TSE Chun-wa	Foreman of A3
PW9 [2]	YUNG Tak-ming	Site manager of A2
PW10	CHEUNG Yan-wo	Repairman of A2
PW11	LEUNG Chiu-ping	Safety Officer of A1
PW12	LAU Wai-tim	Occupational Safety Officer
PW13	Prof Lawrence WU	Material science expert
PW14	TAM Siu-chung	Occupational safety expert
PW15	SIU Kim-hung	E&M Engineer of EMSD

8.  The following witnesses were called by A1 and A3:

DW1	Prof Sze Kam-yin	Mechanical engineering expert
DW2	Spencer PC KAI	Safety expert

9.  The following witnesses were called by A2:

DW3	Dr WONG Yum-wah	Maintenance expert
DW4	CHAN Chung-kwong	General manager of A2
DW5	Dr. LEE Tai Chiu	Mechanical engineering expert

THE PROSECUTION CASE

“Safe Access/Egress”

10.  The prosecution based its case mainly on the evidence of PW12 Lau and PW14 Tam.  Lau, the occupational safety officer, testified as to his observations during the site visits after the accident.  Tam, the occupational safety expert, stated his view in his report (Exh P42) that there was no gangway or means of access from inside of Tower 3 to the scaffold; there were two independent lifelines installed at the bamboo scaffold which attached to a fixed eye bolt on the roof of Tower 3; workers climbed along the ledgers and standards of the scaffold.  He also stated his opinion on the use of safety belt with fall arrester; and that access ladders with proper landings should have been provided.

“Safety Management”

11.  Tam’s initial opinion was that A1 had not properly developed, implemented and maintained the elements of In-House Safety Rules and Regulations. However, Tam changed his opinion and accepted that the site memo (Exh D11) prohibiting the climbing of workers between the TWP and scaffolding could satisfy element of In-House Safety Rules and that A1 had developed, implemented and maintained the requisite element.

12.  At the end of the prosecution case, the prosecution contended that the allegation against A1 was still valid and emphasized that A1 still contravened the summons for reasons that other measures should have (but have not) been taken to ensure such in-house rule was properly implemented.  Further, when DW2 (“Kai”), the safety expert called by A1, was cross-examined, the prosecution alleged that A1 contravened the summons by failing to prohibit passing of the materials.

“Safe system of work”

13.  The prosecution based its case on:

(1)   climbing of workers from TWP to the bamboo scaffold (and vice versa) as risk of falling of persons was involved; and

(2)   passing of building materials, tools, construction debris from the TWP to the bamboo (and vice versa), as risk of falling objects was involved.

14.  The prosecution referred to the site memo and submitted that albeit Exh D11 prohibited climbing, there was no prohibitionagainst passing of materials.  Further, other reasonably practicable measures were absent.

15.  The prosecution called Tam to give his opinion on the topic.  According to his report (Exh P42), it was his view that TWP was not designed for transporting workers or materials to workplace; there was hazard of fall from height when workers was crossing the void space between the TWP and the bamboo scaffold.  And there was a hazard of falling objects during passing of materials.

16.  This would be a “predicated offence” and if A3 was to be found guilty of Summons 19, A1, as the proprietor of the industrial undertaking, should be guilty of the like offence under Summons 8 which was the “derivative offence”.

“Safe Plant”

17.  The prosecution alleged that A1 and A2, as the occupiers of where the workplace of various employees of A3 were located, failed to ensure that M14 was, so far as reasonably practicable, safe and without risks to health.  It is alleged that the two deceased workers, Huynh and Phung, PW6 Xie, PW3 Ng and PW4 Zhen did work on M14 on 15, 18, 19, 20, 24 and 25 March, 2014.

18.  The prosecution relied on the expert opinion of PW13 (“Professor Wu”).  In short, it was his view that the welds of the sleeves at positions 9B, 9A and 10B broke respectively at 21 days, 14 days and 7 days before the accident.  Visible sign of paint cracks would be visible from a month before the accident (joint 9B) and 10 days before the accident (joint 10B). As joint 9B broke approximately 21 days before the accident, that would have covered the offence as early as 15 March, 2014.

19.  It was the prosecution case that by proper maintenance regime, in particular, direct visual inspection of the platform nuts and bolts, A1 and A2 should have discovered signs of cracked paint at joints 9B and 12B.  A1 and A2 should render M14 to be further examined/rectified before it was put to further use, regardless of the absence of the stiffening plate.

20.  Albeit the defence of reasonable practicability was available for A1 and A2, the prosecution submitted that neither A1 or A2 was able to make out the defence on balance of probabilities.

“Repair & Maintenance”

21.  The prosecution alleged that A1 and A2, as the owner of M14, failed to ensure that it was properly maintained as at the date of the accident (Summons 7 (A1) and 18 (A2)). Solely against A2, being the registered contractor in carrying out the responsibilities under BLTWPSO, failed to ensure that all the structural and mechanical components of M14 were kept in a proper state of repair on 22 March, 2014 (Summons 17(A2)).

22.  The prosecution claimed that the offences in question were absolute liability offences.  A1 was the owner by virtue of A1 being the lesseeof M14. It was A1’s case that by engaging A2, a registered contractor, A1’s duty as owner would have been discharged.  In response, the prosecution argued that such duty of A1 was not delegable.

23.  As against A2, the prosecution alleged that A2 had failed to perform direct visual inspection of the platform nuts and bolts, as said by PW15 (“Siu”), the engineer from the EMSD.  It was also alleged that inspectors should have gone under the TWP and to check the nuts and bolts visually or by using a torque wrench.

THE MAGISTRATE’S FINDINGS

General observations on occupational safety of workers

24.  (1)   Al signed the contract with the Incorporated Owners of the Tregunter for the refurbishment works on 13 December 2011 to complete the project in 540 days;

(2)   Al signed the contract with D2 on 16^th December 2011 for the supply of 10 TWPs on lease, for the period from February 2012 to end of December 2013;

(3)   Al signed the contract with A3 for manpower in relation to Tower 3 on 4 July 2012, the contract period was from May 2012 to September 2013;

(4)   risk assessment was prepared in March 2012 for plastering works;

(5)   A risk assessment was prepared in November 2012 for the TWP at Tower 3, including M14. 

25.  PW11 Leung was the safety officer of A1 and was responsible for all the matters on safety and had to report to PW1 Fong, the site manager of A1.  Leung prepared all the risk assessments.  It was specified that climbing by the workers to cross the TWP was prohibited.  Neither Fong nor Leung had any idea if workers were climbing on M14 and did not see any by themselves.

26.  PW12 Lau, the occupational safety officer from the Labour Department visited the site for investigation immediately after the accident.  He examined the left-side platform and saw a large bucket full of water, also an empty bucket, and several packets of cement in a stack on it.

27.  On 4 April 2014, the left-side platform was lowered to the ground.   Lau visited the site again on 8 May 2014. He said the buckets were big enough for an adult to sit inside, and the platform looked like a mobile workshop or factory where plaster was mixed there and debris was allowed to accumulate. 

28.  The learned magistrate pointed to the fact that there were no builders’ lifts or skip hoists built on site.  Lau checked the site and was shown a winch on the rooftop, which he was given to understand to be used by the scaffold builders to move bamboo scaffoldings.  The learned magistrate was of the view that neither A1 nor A3 sought to explain how workers could go about their works on the scaffold without builders’ lifts or skip hoists.  If M14 was to be used to transport workers, they had to climb to and from between M14 and the scaffold and to pass the materials through a void of 0.5 metre between them. 

29.  Three workers (PW3 Ng; PW4 Zhen and PW6 Xie) of A3 who worked on M14 before 25 March 2014 called by the prosecution did not assist the prosecution case in respect of climbing of workers or passing of materials to and from TWP. The learned magistrate found them not forthright in their testimony.

30.  On the other hand, PW5 Chan, the foreman of A3, testified that he gave instructions to four workers on their works assigned by Al the day before the accident. Although he was not specific on whether workers would cross between the TWP and the scaffold directly, he said it was A1’s instructions that if workers needed to cross, safety belt of double lanyards should be used.  The learned  magistrate hence found that the workers could do so, which was adverse to Al and A3’s case.

31.  A3’s foreman, PW 7 Tse, said that workers and materials very often crossed between TWP and scaffold, including himself.  Al and D2 had discussed at his presence and decided that TWP be used as builders’ lift and skip hoist, yet safety belts should be used.  The learned magistrate also based his finding by referring to the risk assessments prepared by Leung. 

32.  The learned magistrate also referred to Exh D11 and stated that it was not until 8 October 2013 that Fong expressly prohibited the transfer between TWP and scaffold.  By that time, the better part of the refurbishment works should have been completed; and that by reason of four workers went up on M14 and only two fell down, he found that the site memo was not followed. 

33.  The learned magistrate also referred to the evidence of PW2 Shih, the foreman of A1, that on 25 March 2014, when the four workers boarded M14, he left the base enclosure.  Given the importance of security placed on M14, the learned magistrate believed Shih must have locked the base enclosure when he left it and there was no chance that the two missing workers have left M14 at the base enclosure.  The learned magistrate also stated that by 10:30 am (time of the accident), the works had not been completed so there was no reason for the workers to come down.

34.  Therefore, the learned magistrate inferred and concluded that the two missing workers climbed over from M14 to land on the scaffold.  He also went on to find that what happened on 25 March 2014 at M14 was just one of many similar occasions adopted as practice that Al used to carry out the refurbishment works, despite the issuance of the site memo and the imposition of a fine for non-compliance.

Safe Access and Egress- Summons 9 against Al; Summons 20 against A3

35.  The learned magistrate firstly referred to the evidence of PW12 Lau.  He did not accept the evidence of Fong.  He claimed that Fong maintained casually that there should be ladders built in the scaffold.  He said he expected Fong to demonstrate positively and confidently the existence of safe access or egress to the scaffold, but Fong failed to do so.

36.  The learned magistrate accepted the opinion evidence of PW14 Tam, the occupational safety expert, that (1) safe access to and egress from the scaffold should be provided; (2) the use of safety belt with fall arrester anchored to the independent lifeline was only practicable when it was impracticable to erect a safe working platform or to provide safe access or egress according to the Code of Practice; and (3) access ladders with proper landings were practicable, whereas the ladders could be straight ladders or slanted step ladders inside the scaffold.  Tam opined that safe means of access and egress had not been provided.

Safety Management—Summons 10 against Al

37.  The prosecution relied on the evidence of Tam.  The learned magistratewas alive to the fact that when Tam first prepared his opinion, he did not haveor was not shown Exh D11.  When Tam was shown the site memo when he was testifying at the trial, he changed his opinion and accepted that the site memo could satisfy the element of in-house safety rules.

38.  Despite the change of Tam’s opinion, the learned magistrate however did not accept the site memo as proper in-house safety rules.  He  was of the view that if the site memo was to be followed, without any alternative ways put forward, it would not be conducive to efficiency and occupational safety and health.

39.  For reason that the two missing workers were not killed, the learned magistrate inferred that they had left M14 by crossing over to the scaffold, hence another occasion of breach of the site memo.  It was therefore found that the site memo was not properly implemented and maintained, hence Al was guilty of Summons 10.

Safe System of Work—Summons 19 against A3; Summons 8 against A1 (derivative offence)

40.  As against A3, the learned magistrate was of the view that A3’s duty was not delegable.  He referred to the guidebook issued by the Labour Department and found A3 had done nothing to provide and maintain a safe system of work.  He accepted that had A1 satisfactorily provided and maintained a system of work that was required, A3 could be benefited.

41.  The learned magistrate went on to hold that A1 had not provided and maintained a system of work that was required.  He found that the evidence adduced by A1 concerning the implementation of the site memo as well as how the workers could go about their works on the scaffold was ambiguous and full of contradictions.

42.  Therefore, having considered the whole of the circumstances, the learned magistrate found A3 guilty of Summons 19; and hence Al was guilty of Summons 8 for the like offence committed by A3.

Safety of M14—Summons 7 against A1(primary duties); Summons 17 & 18 against A2

43.  The learned magistrate identified the condition of M14 at the time of the accident to be the core question to be decided concerning Summons 7.  He then went on to consider the cause of the failure of M14.

44.  In determining this question, the learned magistrate preferred the opinion evidence of PW13 Professor Wu, the prosecution’s expert on material science.  Professor Wu examined the sleeves of M14 and made findings as to the sequence of failure of sleeves 9 and 10.  As to the cause of the failure, the learned magistrate accepted the evidence of Professor Wu that the most probable mechanism was metal fatigue, and that the workmanship of the weld joints at the four sleeves were substandard, which could reduce the fatigue life limit.

45.  The learned magistrate also found that M14 was in use for 17 months which means the loads on the right-side platform were repeated in sufficient cycles to reach the fatigue life limit of all four joints at sleeves 9 and 10.  He therefore inferred that the mechanism of fatigue took time to develop and on the appearances of joints 12B and 13B, there must be signs evidencing such development.

46.  Concerning the issue of the missing stiffening plates raised by A2, the learned magistrate was of the view that (1) there was no direct evidence from the manufacturer to render support; and (2) the missing plates only had relevance to the cause of failure, the duties to maintain remained.  The learned magistrate therefore concluded that this matter should be ignored.

47.  Relying on the estimated time and sequence of joints failure according to Professor Wu, the learned magistrate found that the people responsible for maintenance should have discovered signs calling out for urgent maintenance.

48.  In the end, the learned magistrate accepted the opinion of Professor Wu that:

(1)   the accident was due to weld fatigue in the joints holding the right-side platform;

(2)   the mechanism of fatigue took time to develop;

(3)   the sequence of failure was 9B, 9A, 10B and 10A;

(4)   the total failure of the aforesaid joints occurred at least as late as four weeks prior to the accident, and this was a very conservative estimation of time; and

(5)   shortly before the joint was broken completely, cracks on the paints outside the joints would be visible.

49.  In respect of the maintenance, the learned magistrate analyzed the evidence of PW15 Siu, PW9 Yung, PW10 Cheung and DW3 Wong and found that there was lack of maintenance on the part of A2.

50.  As against A1, the learned magistrate found that one of the duties of owner (including A1) is to ensure that the TWP was properly maintained was not to put it to excessive use over 17 months of M14.  A1 brought about it and A2 acquiesced in it.  As the offence was an absolute offence, there was no defence available for A1 and A2.  Hence A1 and A2 were found guilty as per Summons 7 and Summons 17 – 18 accordingly.

Safety of M14—Summons 1 – 6 against A1; Summonses 11 – 16 against A2 (secondary duties)

51.  These secondary duties arise in relation to premises under the following two conditions:

(1)   premises where an employee’s workplace was located, and

(2)   the premises were not under the control of the employee’s   employer.

52.  The premises referred to “the base enclosure of the tower working platform (M14)” and the employees were the workers of A3.  They worked on M14 inside the base enclosure and they were then not under the control of A3, their employer.

53.  These duties fall on the occupier of the premises and the occupier must “ensure that plants, namely, the TWP (M14), kept at the premises was, so far as reasonably practicable, safe and without risk to health”, under section 7(1)(c) of the Occupational Safety and Health Ordinance, Cap 509.

54.  It is the prosecution case that both A1 and A2 were occupiers of the premises.

55.  In respect of the 6 days chosen by the prosecution (ie 15, 18, 19, 20, 24 and 25 March 2014), it was the prosecution’s case that M14 was not safe and not properly maintained.  In respect of the work records produced by the prosecution, the learned magistrate noted the challenge raised by Al that there was no evidence establishing the accuracy of the same and held that as the same were produced by way of admitted facts, he understood it to include the authenticity and contents, similar to evidence like business registration of A1.  Further, he was of the view that for the offences in question, only the days are essential but not the identity of the workers, as long as there were workers on board of M14.

56.  Based on the above expert evidence of Professor Wu which the learned magistrate found that Al and A2 failed to make out the statutory defence and he duly convicted Al of Summonses 1 – 6 (and A2 of Summonses 11 – 16).

GROUNDS OF APPEAL AGAINST CONVICTIONS

57.  In the present hearing, A1 and A3 are represented by Mr Eric Kwok SC and with him, Mr Tony Li and Mr Charles Kwok.  A2 is not legally represented in the appeal and its director, Mr Chan Chun-kwong (DW4) attended and argued on behalf of his company.  The respondent is still represented by Mr Desmond Leung who was the counsel-on-fiat prosecuting in the original trial.

58.  Each appellant has raised a good number of grounds of appeal against its convictions.  Instead of reciting each of their grounds at great length, I shall just refer to their criticisms on the verdicts reached by the magistrate on the 20 summonses when I come to consider the submissions from both sides under the individual heading as stated above.

A CONSIDERATION OF THE SUBMISSIONS

Safe Access and Egress—Summons 9 (A1) and Summons 20 (A3)

59.  As said, these two summonses were about whether there was so far as reasonably practicable, suitable and adequate access to and egress from the bamboo scaffold.

60.  Mr Kwok, on behalf of A1 and A3, complained that the learned magistrate, inter alias, of failing to consider sufficiently the evidence of the relevant witnesses on the subject-matter.  In particular, it was said that the learned magistrate relied on irrelevant and speculative matters, namely matters took place on a date other than the offence date and the whereabouts of the missing two workers.

61.  Mr Leung, on behalf of the respondent, conceded in this appeal, as he did during closing submission on behalf of the prosecution at the trial, that there were inconsistent testimonies (in particular, that of PW1 Fong andPW12 Lau) as to whether safe means of access and egress had been provided for in the bamboo scaffolding.  Accordingly, the respondent accepted that on the evidence before the court, the convictions on “safe access/ egress” (ie Summons 9 and Summons 20) could not be sustained.

62.  As submitted by Mr Kwok, one could gather from the evidenceof PW1 Fong, PW7 Tse and PW12 Lau that there were independent lifelines body together with harnesses and fall arrestors for workers; access ladders with intervals between rungs and landings as means of movement; access and egress points to the scaffold from the roof; and that the scaffolding was inspected by competent persons and there was no complaint by the Labour Department after their inspection.  It was also submitted that there was no proper basis to find that Al and A3 had not provided safe access to and egress from the bamboo scaffold.  Alternatively, both Al and A3 had done what was reasonably practicable to provide safe access to and egress from the bamboo scaffold.

63.  A3 also took issue as to whether there was sufficient evidence to prove that it had direct control (which was an essential element of Summons 20) over the works in question.  A3, it was submitted, simply provided workers to A1 and they all acted under the directions of A1.  The learned magistrate therefore erred in finding that A3 had direct control over the refurbishment works or the works as charged.

64.  In my judgment, with respect to the learned magistrate, he was obviously influenced by the fact that there were no builders’ lift or skip hoists built on site.  Be that as it may, Tam, the occupational safety expert, however, had already amended his opinion, after being shown a sketch drawn by Fong where he demonstrated the ladder system in the scaffolding, that he would accept such arrangements as being safe access and egress being provided.  By way of rehearing of the evidence adduced, I am persuaded that the learned magistrate did not evaluate the evidence on this topic properly and or sufficiently.  Further, based on the important concession by the respondent, and in my view properly, I am satisfied that the prosecution had not proved its case beyond all reasonable doubt on these two summonses and the convictions on Summons 9 and Summons 20 were thereby set aside. 

Safety management—Summons 10 (A1)

65.  In this ground, Mr Kwok complained that the learned magistrate committed errors by (1) relying on irrelevant and speculative matters, namely matters took place on a date other than the date of offence and the whereabouts of the two missing workers and (2) failing to sufficiently consider the evidence of Tam.

66.  Mr Kwok referred me to the site memo (Exh D11) dated 8 October 2013.  According to PW1 Fong, (1) D11 was sent to EMSD to inform the EMSD that Al had strengthened the safety measures at the site as a result of an on-going dialogue with the EMSD.  Hard copies of D11 were posted for sight of workers.  There were talks and meetings organized concerning D11; (2) As to the gap between the scaffolding and the extreme edge of TWP, it measured a distance of 200 – 300 mm.  The area under the gap and at the ground level was enclosed by metal fence, such that any falling object would be landed within the enclosed area; (3) the arrangement was made according to safety rule; (4) after the implementationof D11, there was no reported contravention; (5) penalty system was in place for any contravention by workers of A3 and (6) climbing out of TWP was prohibited.

67.  Mr Kwok also referred to PW7 Tse, site foreman of A3, who also testified that he was aware of the regime imposed by D11 and he had communicated to the workers immediately.  According to PW7, after the issue of D11, the practice of workers moving between TWP and scaffold was not permitted.  PW7 also did not witness any incident of violation thereafter.

68.  Mr Kwok submitted that the learned magistrate for being unfair when he criticized the prosecution for making a concession on the fact that there was no clear evidence as to the two missing workers had left M14 by crossing over the TWP.  In so doing, he complained that the learned magistrate was merely speculating and made adverse finding based upon speculation.

69.  As to the failure of proper implementation and the passing of materials, Mr. Kwok pointed out that PW14 Tam accepted that with the approval of the manufacturer, passage of materials could be carried out.  Al also referred to the evidence of PW9 Yung in that movement of materials from TWP was permissible and the original intention of using the TWP was for workers to bring materials and equipment to carry out works on the external wall and to bring the debris and construction waste down.

70.  On behalf of the respondent, Mr Leungaccepted that as a result of D11 and the testimonies surrounding it, an important aspect of the prosecution case (ie climbing over by workers) has been significantly weakened.  To sustain the prosecution of the summons, they changed the emphasis on passing of materials.  However, Mr Leung emphasized that this does not mean that the prosecution had changed its case as the hazards of passing of materials between TWP and the scaffolds has always been an aspect of the misuse of the TWP.

71.  Although A1 and A3 contended that passing of materials was permissible according to Tam and Yung, Mr Leung submitted that Tam’s view has been distorted.  Tam was being cross-examined on the document “IPAF Guidelines for the Safe Use of Mast Climbing Work Platforms” and the conditions under which it would be acceptable to use a TWP for transporting materials.  Based on that document, Tam opined that all relevant safety measures had to be taken before such course could be taken.  This did not detract from the main tenor of his opinion regarding the risk of falling object caused by passing of materials.  On the other hand, PW9 Yung was only a site manager and not a safety expert.  As a factual witness, his opinion in this regard carries no weight.

72.  Regarding the in-house safety rules prohibiting climbing over by workers, Mr Leung accepted that such rules had been developed.  However, Mr Leung maintained its stance that despite the site memo and putting into practice of some measures, such rules should have been properly implemented by the inclusion of some other measures such as physical barriers or warning notice at the TWP.  The lack of evidence of contravention on the date of offence is not conclusive as to whether such rule was properly implemented and/or maintained.

73.  In my judgment, as said, the prosecution case on this summons is twofold.  There should be measures in place to prohibit (1) the crossing of workers as well as (2) the passing of building materials between the TWP and the scaffolds.  The site memo (Exh D11) issued by A1 strictly prohibited the former but was silent on the latter.  A1 submitted that PW14 Tam accepted that with the approval of the manufacturer, passage of materials could be carried out. In this regard, I only need to refer to the re-examination of Tam by Mr Leung where Tam clarified with the prosecution that the so-called out-of-scope application of TWP could only be applied if it was the most practicable method. Tam also pointed out that for this type of project of repairing the exterior wall of a building, it was a common practice to install a small-sized hoist for the transport of materials or construction debris and it was his considered opinion that the installation of hoist was reasonably practicable because in a double-layered scaffolding such as in the site, the materials could be transported from one point to another vertically in the space between the outer and the inner layers and therefore the use of TWP to transfer the materials would not be safe and practicable.

74.  As to the risk of falling of materials, Tam also rejected A1’s argument that the objects would fell into the base enclosure as the route or path of a falling object would not necessarily follow a straight line as the object might hit against another object such as the bamboo members of the scaffolding.  The suggestion by Mr Kwok that there were also some catch fans already installed in the bamboo scaffolding actually lend further support of Tam’s observation in the matter.

75.  In the circumstances, the learned magistrate was fully entitled to place full weight on the opinion of Tam on this matter.  In any event, even A1 had, by issuing D11, adopted and implemented a safety measure preventing the climbing of workers between the TWP and scaffolding, it still failed to adopt the safe and most practicable method to transport materials.  The use of TWP by the workers to pass materials between TWP and the scaffolding should be strictly forbidden in the site and there should be relevant in-house safety rules issued by A1 to this effect but there was none.

76.  This ground fails and the conviction on Summons 10 against A1 stands.

Safe System of Work—Summons 19 (A3) and Summons 8 (A1)

77.  As said, the prosecution case under these two summonses was all about the movement of workers and materials between M14 and the scaffold.  Mr Kwok also adopted the submissions concerning “safety management” on Summons 10 above when during the discussion under these two summonses.

78.  Concerning risk assessments, Mr Kwok said the learned magistrate was aware of the evidence that PW11 Leung, the safety officer of A1, prepared all the risk assessments (Exhs P12 – P17).  It was specified that climbing to cross the TWP was prohibited.  The learned magistrate was also aware of the site memo.

79.  In respect of the movement of the workers between TWP and scaffold, Mr Kwok just repeated the submissions on Summons 10.  Further, as to risk of falling objects, he highlighted the evidence from their safety expert DW2 Kai that the base of the TWP was an enclosed area with fence and lock, such that no one could gain access to that area and be exposed to the risk of falling objects.

80.  DW2 Kai stated in his report that TWP is a safer means of working platform when compared with bamboo scaffold for external wall tiling work project in Hong Kong.  Method Statement and Risk Assessment had been prepared by Al and the related safety control measures were communicated to the direct employee and the subcontractors.  A high standard training, monitoring and supervision programme were provided and arrangements had been implemented effectively.  Safety rules were in place and were issued to workers.

81.  Insofar as the system of work is concerned, it was thus submitted that A1 had satisfactorily provided and maintained a system of work that was required for the safety of A3’s workers.  The role of A3 suggests that it was reasonably practicable to adopt the system devised by A1.  In light of the above submissions, A3 has, so far as was reasonably practicable, provided and maintained a safe system of work, and hence should not be guilty of Summons 19. As such, Al should not be guilty (Summons 8) of the like offence of A3.

82.  Further, and in light of the matters elaborated above, it was submitted that Al had done what was reasonably practicable to ensure safety, hence Al has made out the relevant defence.

83.  In reply, Mr Leung also repeated his earlier submissions on safety management. It was also his submission that the learned magistrate’s finding of facts should not be disturbed by the appellate court unless it has been demonstrated to be plainly wrong.  It was also accepted that the defence of “reasonably practicable” for section 13 derivative offence was available to A1 as a matter of law.  However, it was submitted that such defence was not made out on facts.

84.  Summons 19 was against A3 as direct employer of workers under section 6A(1) and 6A(2)(a) of the Factories and Industrial Undertakings Ordinance, Cap 59.

85.  This would be a “predicated offence” if A3 was found guilty of it.  Under section 13, A1 would be guilty of the like offence which was called the “derivative offence”.

86.  Section 6A deals with the legal liability of A3 regarding the workers employed by it in the refurbishment works.  A3 must ensure, as far as is reasonably practicable, the health and safety at work of all persons employed by it at the industrial undertaking. 

87.  The learned magistrate was entirely correct to refer himself to the Court of Final Appeal case of HKSAR v Gammon Construction (2015) 18 HKCFAR 110 where it was held that the prosecution, in order to make out its case, does not need to establish a causal relationship between the alleged breach and the injury.  The duty of the employer is to ensure the health and safety at work of employees.  If that result is not achieved, the employer will be in breach of his statutory duty, unless he can show that it was not reasonably practicable for him to do more than was done to satisfy it.

88.  Gleeson NPJ of Court of Final Appeal also cited in Gammon Construction (supra) what Lord Reid said in Marshall v Gotham Co Ltd [1954] AC 360 in paragraph 26:

“ I think it enough to say that if a precaution is practicable it must be taken unless in the whole circumstances that would be unreasonable. And as men’s lives may be at stake it should not lightly be held that to take a practicable precaution is unreasonable.”

89.  On the facts of this case, the learned magistrate found that A3 had done nothing to provide and to maintain a system of work for the safety of his workers and it duty is not delegable. It was his finding that A1 also had not done so either.  Although A1 had prepared 6 risk assessments, they dealt with specific tasks, like using tower working platform, spalling the external wall, or replacing the balcony fences.  Regarding the main theme of this case and the particulars of the summons concern “using tower working platform and bamboo scaffold together”, the Method Statement did not touch on this subject.

90.  Insofar as the statutory defence is concerned, under section 18 of Cap 59, the duty is on A1 and A3 to demonstrate that it was not reasonably practicable to prepare such system of work.  The learned magistrate had obviously placed full weight on Tam, as expert of the Labour Department who found unsatisfactory aspects of the working system and made several recommendations in his reports.

91.  Having considered the whole circumstances, the learned magistrate found that A3 never provided and maintained a system of work at all, as set out in the Summons 19.  He also found that A1 did not provide and maintain any such system of work required of A3 and that A1 could not show that it was not reasonably practicable for it to do more than was done to satisfy the statutory duty on it.

92.  For these two summonses on safe working system, I only need to repeat my considerations as stated in paragraphs 69 – 71 above concerning Summons 10 on safety management.  Summons 8 and Summons 19 stands and falls together with Summons 10.  Leaving aside the issue of climbing of workers from the TWP to the scaffold which have been dealt with by the site memo as agreed by Tam, both A3 and A1 still failed to address sufficiently or at all on the issue of passing of materials between TWP and scaffoldings in the site.  Their own safety expert DW2 Kai just said that it would be safe to pass materials like buckets of plaster “if the workers did so carefully”.  Such attitude was obviously not conducive to the provision and maintenance of a safe system of work.

93.  Under the circumstances, the learned magistrate’s finding that A3 never provided and maintained a safe system of work as set out in Summons 19 cannot be faulted (albeit on a narrower basis) and A1 would be guilty of Summons 8 as a result.  Both A1 and A3 also could not show that it was not reasonably practicable for them to do more than was done to satisfy the statutory duty on it.

94.  This ground fails and the convictions on Summons 19 and Summons 8 stand.

Safety of M14—(primary duties) Summons 7 against A1 and Summonses 17 and 18 against A2; (secondary duties) Summonses 1 – 6 against A1 and Summonses 11 – 16 against A2

95.  Under this heading, A1 raised the following criticisms on the finding by the learned magistrate:

(1)   failed to consider the evidence concerning the substandard workmanship and/or design of TWP and the effect of the missing stiffening plates on the TWP;

(2)   failed to consider sufficiently and/or properly the expert evidence of Professor Wu;

(3)   in finding that the TWP was used excessively, the learned magistrate did not consider the presence of overloading alarm installed on the TWP and that there was no clear evidence of excessive use of the TWP;

(4)   accepted the evidence of PW13 Professor Wu despite the existence of problems with his opinions;

(5)   failed to consider sufficiently and or properly the evidence of the following witnesses concerning the maintenance of the TWP:

PW9 Yung; PW10 Cheung; PW15 Siu; and

(6)   did not consider properly the extent of duties of A1 under the BLTWPO, Cap 470;

(7)   did not consider properly the extent of duties of the A2 vis-à-vis the maintenance of the TWP, in particular the evidence of Siu; and

(8)   placed undue and/or improper weight on the existence of an accident.

96.  A2 similarly criticized the learned magistrate on three main grounds:

(1)   the learned magistrate erred in failing to take into account that the maintenance regime had been properly devised and would cover all foreseeable risks;

(2)   the prosecution’s case, and the evidence produced, alleging that A2 in its maintenance work failed to check the platform bolts and nuts according to the manufacturer’s instructions, were irrelevant to the charges.  Furthermore, the said checking was technically not necessary at all, and the allegation that A2 had failed to carry out the said checking was also factually incorrect; and

(3)   the learned magistrate erred in relying solely on the inadequate and uncorroborated expert evidence of Professor Wu on material science, particularly on when the fracture of the welds occurred and whether there would be visible signs of fatigue cracks before the final fracture.  In addition, he wrongly ignored the evidence of the defendants’ expert witnesses on the alternative possible inferences.

97.  In convicting both A1 and A2 on these 15 summonses concerning the safety and maintenance of M14, the learned magistrate relied heavily on the expert evidence of Professor Wu that he estimated that the welds at three of the four joints joining both ends of the two sleeves to the right side steel frame of the lifting cage (which he had labelled as 9A, 9B, 10A and 10B) had fractured before the date of the accident.  Based on this opinion, he found that “there must be signs giving prior warnings about the imminent failure and they appeared in good time of at least a couple of weeks before the failure”.

98.  At the same time, the learned magistrate also accepted the evidence of PW15 Siu, the electrical and mechanical engineer from the EMSD on maintenance requirements of TWP that, if A2 in its weekly maintenance work would have checked the bolts and nuts at the joints using the direct visual inspection method, it would have seen signs of the fatigue cracks nearby.  Based on this opinion, the magistrate held that A1 and A2’s maintenance work was defective, and that they had failed to detect the signs of the fatigue cracks developed at the welded joints of the tower working platform and have the machine stopped and repaired in time.

99.  The above two expert opinions thus became the core issues for the proving of these 12 summonses.  It follows that the learned magistrate’s findings under these relevant summonses are to be critically assessed against the totality of evidence offered by Professor Wu and Siu, subject to some important retractions and qualifications after cross-examinations.

100.  In summary, both A1 and A2 submitted that the learned magistrate did not properly or sufficiently analyze the following matters in his consideration.  They were:

(1)   defects could not be detected by visual inspection;

(2)   the left-side platform of M14 does not necessarily make a good comparison with the right-side platform;

(3)   design defect played a material role to the failure; and

(4)   the omission of stiffening plate also played a role to the failure.

101.  The respondent supported the learned magistrate’s findings on this topicand submitted that the missing stiffening plate was only a red-herring as thesummonses only concerned the proper maintenance of M14 and the absence of the stiffening plate was irrelevant to the consideration.  I must say, however, I have difficulty in accepting such a submission.  The learned magistrate’s focus on the proper maintenance rather than the design of M14 could not be criticized but by totally disregarding the structural defect and playing down the significance of the missing stiffening plate which contributed to the “downfall” of the right-side platform of M14, the learned magistrate obviously overlooked whether it was indeed reasonably foreseeable and also practicable for the principal contractor (A1) or maintenance contractor (A2) to check for latent defects of M14 during their routine inspections which were only designed to check for some obvious damage caused by external factors.  There is some weight of the proposition that if there was the reinforcement plate, the joints would not become critical at all as the reinforcement plate would take up most of the loading instead of allowing the welds at both ends of a sleeve to take up all the loading.  It is also important to remember that despite their disagreements, all the experts at the trial agreed that in this accident, design defect played a material role to the failure of M14.

102.  The learned magistrate formed the view that during their submissions, the appellants only tried to shift the blame to the manufacturer who was not on trial.  Whether it was the case or whether the appellants were indeed taking the blames for the manufacturer, in my judgment, largely depends on whether the latent defects could really be detected during visual inspection by workers before the accident as suggested by both experts called by the prosecution.

103.  In this connection, Mr Kwok referred me to the evidence of PW9 Yung who was the site manager of A2 and also a competent worker under Cap 470, qualified for the repair and maintenance of TWP.  Yung testified that A2 was responsible for the installation, maintenance and repair of M14 and it was also the largest company in Hong Kong that dealt with TWPs.  A2 maintained a close dialogue with EMSD and M14 could only be used with the permission given by EMSD.  Yung assigned the repair and maintenance to PW10 Cheung who was the competent operator involved with the daily and weekly maintenance including the checking of the bolts and nuts.

104.  One of the matters which was stressed by Yung was that the bolts that were used to fix the platform with the cage (“NYLOC”) had to be tightened or loosened with a special tool called torque wrench and visual inspection could not detect how loose the bolts were unless it was completely loose.  In the daily pre-flight inspection, the competent operator would see if there were gaps between the lifting cage and the platform whereas Yung or competent worker from A2 would also check the same during the weeklyinspection.  Form 7 would be prepared during weekly inspection and EMSD would give comment if they were not satisfied. As for M14, Yung was never aware of any abnormal gap.

105.  In his detailed written submission, Mr Chan, A2’s director, referred me also to the fact that the Code of Practice issued by EMSD in relation to TWP does not prescribe what maintenance work is to be carried out by a registered contractor.  A2 thus embarked to design the maintenance regime for the newly introduced tower working platform on its own. It was the evidence of Mr Chan that he devised the maintenance regime based on the maintenance work prescribed in the manufacturer’s original manual and also the requirement of BLTWPO, Cap.  470.

106.  It was also Mr Chan’s evidence that the daily checks in his designed maintenance work program would cover all the checks prescribed in Annex II of the TWP Code of Practice which are the duties of a competent operator, and that the weekly, monthly, half-yearly and yearly maintenance work programs would also cover all the maintenance work as required in the manufacturer’s original instructions which are the duties of a competent worker.

107.  As to whether the maintenance regime should include any checking for metal fatigue, Mr Chan said he had specifically inquired the manufacturer whether there were any components susceptible to metal fatigue and was told that the only components were the gear-motors in the lifting cage.

108.  These evidence were not challenged by the prosecution at the trial, according to Mr. Chan.

109.  The learned magistrate did not deal with these issues and he relied on the evidence of PW15 Siu and based onhis expert opinion that the maintenance programme should cater for possible defects in the TWP and should be able to detect such defects.  Leaving aside the technical difficulties, it is obvious that unless the prosecution can prove beyond reasonable doubt that the defects was so obvious and thus detectable, in my view, it would be impractical, and indeed impossible, for the maintenance contractor to check for structural problems during the daily inspection or weekly maintenance.

110.  Although Siu had said in his opinion that the competent worker should carry out the daily checks or supervise the daily checks of the competent operator, Mr Chan emphasized that no such requirement was found in Cap. 470, the TWP Code of Practice or any circular from EMSD.  In fact, he pointed out that the duties designed for the competent operator are all simple inspections that require no supervision.

111.  The prosecution also relied on the failure by A2’s competent worker to check the platform bolts and nuts were intact by direct visual inspection.  In this regard, Mr Chan however submitted that the prosecution and Siu were totally misconceived in that according to the TWP manufacturer’s manual, the checking of bolts and nuts was only referring to the small bolts and nuts on the mast guard and those holding the guard rail.  There is no mentioning in the manual of checking the bolts and nuts at the bolted joints of the lifting cage as proposed by the prosecution. Technically, there would also be no need to check those larger bolts and nuts as the nuts were of the Nyloc type which hold the bolts firmly and would not become loosen easily.

112.  Mr Chan also pointed out that the competent workers would also walk in the TWP and check for any gaps between the platform sections.  If the bolts and nuts were loosened, the gaps would appear in the platform but PW10 Cheung said in court that he did not notice anything wrong or any gap during his inspection on 22 March, 2014.  The learned magistrate said Cheung would not be able to detect any gap because of the dirty condition in the platform but Mr. Chan reminded me that Cheung did say that he would clean the platform if necessary before carrying out the maintenance.

113.  In this trial, there was no direct evidence that there were visual marks of metal fatigue before the accident.  The basis of the prosecution for all these related summonses against the two appellants were the uncorroborated evidence from Professor Wu which was subject to the challenge and criticisms by both DW1 Professor Sze and DW5 Dr Lee, called by A1 and A2 during the trial.

114.  In particular, on behalf of A2, Mr Chan criticized the learned magistrate’s approach to Professor Wu’s expert opinion as follows:

(a)   accepting that the condition of the left side platform deck was a delayed image of the right hand side platform deck;

(b)   accepting only the prosecution’s inadequate expert evidence on the failure, particularly the uncorroborated evidence on when the final fatigue fractures at the relevant joints occurred;

(c)   disregarding the evidence of the defendants’ expert witnesses; and

(d)   accepting the uncorroborated evidence that there would be visual marks of the fatigue cracks before the final fracture.

115.  In relation to (a), it was submitted that the proposition was an inference based on certain facts which was not proved by the evidence.  A2 referred to the different opinion of their own expert on material science DW5 Dr Lee.  Dr Lee also referred to the fact that the cracks found on the left-side platform could be caused by strong gale when it was hanging in the mid-air after the accident for about 10 days before it was lowered onto the ground.  Professor Wu, when being recalled to comment on Dr Lee’s suggestion, maintained his view that the effect of the wind was negligible, but was unable to provide any detailed analysis to reject Lee’s observation and calculation.

116.  In relation to (b), A2 pointed out that Professor Wu did not explain how he made his estimations of when the fatigue fractured.  He did not provide any scientific principles or any supporting calculations.  The learned magistrate also noted that “Professor Wu admitted under cross examination that there was no exact science in this matter.  His estimation was based on professional experience and common sense.”

117.  A2 questioned Professor Wu’s justification for making the above estimation, a very crucial piece of evidence, based only on the alleged professional experience.

118.  A2 also raised various challenges on the reliability of those estimates made by Professor Wu at the trial, including challenges to his professional experience on tower working platforms, inconsistencies in his estimation at different times, and his failure to examine a nearby tower working platform of the same model and comparable workload.  A2 complained that the magistrate did not dispose of these challenges in his verdict.

119.  In relation to (c), it was contended that the learned magistrate completely disregarded the evidence of DW1, Professor Sze (A1 and A3’s expert witness on material science) and Dr Lee.  The learned magistrate criticized them as being “too academic”.   He also criticized Dr Lee for being “… more in disagreement with Professor Wu on many points than in agreement”.  

120.  It was submitted that both Professor Sze and Dr Lee were   distinguished academics in material science and mechanical engineering just as Professor Wu was and they were engaged after Professor Wu had completed his examination of M14. Professor Wu was recalled to reply to the points raised in Dr Lee’s Supplementary Report.  He disagreed with many of Dr Lee’s points but had nothing to add.  He did not provide any reasons and supporting calculations to reject any of Dr Lee’s points.

121.  Dr Lee was required to clarify the issues raised in the Supplementary Report when he gave evidence in court.  No substantial challenge was raised by the prosecution, according to A2.

122.  A2 in particular complained that the learned magistrate simply preferred the evidence of one expert witness to the evidence of another expert.  He failed to set out the reasons for accepting or rejecting the individual findings and opinions of the different expert witnesses.  The disregard of Professor Sze and Dr Lee’s evidence would mean that the alternative possible inferences would be wrongly excluded.

123.  Both the learned magistrate and Mr Leung preferred the expert opinion of Professor Wu as he was the only expert who have physically examined M14 before giving his opinion.  It was pointed out to me, however, that Professor Sze and Dr Lee were only instructed after Professor Wu had completed his examination.  A2 submitted that as Professor Wu’s method for examining the fatigue crack lengths was destructive, it would be difficult, if not impossible, for the other two experts to conduct or repeat the examination.  Dr Lee accepted the measurements taken by Professor Wu in his examination but raised challenges on the deficiencies of the examination, and on how the results could be interpreted.

124.  Finally, in relation to (d), the prosecution and Professor Wu suggested that there would be visual crack signs at the surface before the fatigue developed into the final stage leading to a sudden fracture. It was submitted, however, that Professor Wu did not produce any corroborating evidence or scientific principles to prove this proposition.  In addition, since the weld surface was painted therefore it might not be possible to see the crack if there was no displacement of the sleeve.

125.  Furthermore, during the cross examination, Professor Wu was shown his own photographs of the joints on the left side platform.  He admitted that it was difficult to identify the crack marks, and that the marks shown on the photographs could have been manufacturing marks unrelated to fatigue. 

126.  Therefore, both appellants complained that there was no evidence, direct or by inference, to support the learned magistrate’s finding that “there must be signs giving prior warnings about the imminent failure and they appeared in good time of at least a couple of weeks before the failure”.   It was pointed out that the learned magistrate’s finding was probably based on the dilapidated condition of Joint 12B but in the regard, he might not have sufficiently considered the evidence produced by Dr Lee, that the dilapidated condition could have been caused by the violent shaking and rocking action when the left side platform was left hanging in the air for more than 10 days and was subjected to strong winds.  On this, A2 pointed out that even Professor Sze, A1’s expert witness, had withdrawn his initial agreement with Professor Wu’s findings, and changed his opinion that the severity of the weld crack could be caused by the adverse weather.

127.  It was submitted that Professor Wu did not produce any corroborating evidence or scientific principles to prove this proposition.  In addition, since the weld surface was painted therefore it might not be possible to see the crack if there was no displacement of the sleeve.  This was agreed by Professor Wu when he was cross examined by A2’s counsel during the trial.

128.  Furthermore, it was pointed out that during the cross-examination, Professor Wu was shown his own photographs of the joints on the left side platform.  He admitted that it was difficult to identify the crack marks, and that the marks shown on the photographs could have been manufacturing marks unrelated to fatigue. 

129.  Dr Lee opined that it was quite possible for all welds to break in quick succession on the date of the accident.  This was also contrary to Professor Wu’s proposition that the different welds broke at a weekly interval and over a long period of time.  Dr Lee also said the platform would swing if any bolt became loosen.  It would generate an imbalance which cause swung.  Dr Lee, on the other hand, maintained that he fact that during the accident, the right-side platform swung during the fall would indicate that the fracture at joint 9B, 9A, 10B and 10A had occurred in sequence within a short interval.  If that was not the case, the platform would have fallen straight down.

130.  Finally, it was further submitted that the learned magistrate did not paidsufficient attention to the direct evidence of PW10 Cheung (A2’s competent worker) that during the weekly maintenance on 22 March 2014, he did not notice any anomalies.  It was said that if Professor Wu’s opinion that severe fracture would have been developed by then, PW10 would not have failed to notice.

131.  One of the learned magistrate’s finding was that the metal fatigue developed on M14 was due to excessive use of it during the 17 months of its operation by A1.  In this regard, Mr Kwok argued that the learned magistrate has wrongly disregarded some important evidence given by some of the prosecution witnesses while Mr Chan emphasized that only overloading which exceeded the endurance limit of the machine would cause problems.  Both PW1 Fong and PW7 Tse testified that there was an overloading alarm installed in the TWP to prevent overloading.  When the alarm went off, the TWP would be locked and unable to move.  It would need to be reset again.  There would always be a loading reserve of at least 200 kg or 300 kg.  PW9 Yung said both in the daily and weekly inspection, the competent operators of M14 would check for gaps between the lifting cage and platform.  Yung was never aware of any abnormal gap before the accident.  PW10 Cheung, the competent worker employed by A2 said in court that during his inspection on M14 on 22 March, 2014, he discovered no gap.  He would inspect the nuts and bolts during the weekly inspection but even according to Form 7 by the EMSD, it does not require him to inspect underneath the platform.

132.  In this trial, the prosecution’s allegation on the safety of M14 and the lack of proper maintenance by A1 and A2 revolves around the finding by the learned magistrate that “there must be signs giving prior warnings about the imminent failure and they appeared in good time of at least a couple of weeks before the failure”.   This finding no doubt was based on the expert opinion of Professor Wu that visible sign of paint cracks would be visible on one month before the accident.  Admittedly, this relevant opinion was however reached by Professor Wu’s inference based on his knowledge and experience.

133.  The learned magistrate also acknowledged in his statement of findings, “Professor Wu admitted under cross-examination that there was no exact science in this matter.  His estimation was based on professional experience and common sense”.

134.  The learned magistrate finally dismissed the expert opinions by Professor Sze and Dr Lee as too academic and based on common sense.  He rejected Dr Lee’s proposition that once a joint failed, the whole platform failed at once on the right-side platform.

135.  In The Queen v Chan Kam Tak & Another (unreported, CACC 204/1987), an often-cited case on the function of an expert, it was held:

“ The function of an expert is first to give his opinion upon an issue in the case based on inferences which he draws from perceived facts as a result of his knowledge and experience; second, to give evidence of fact which his training has equipped him to perceive but which would not be observed by a layman. Third: ‘to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of his conclusions, so as to enable the judge or jury to form their own judgment by the application of these criteria to the facts proved in evidence.’ (Archbold 42nd edition. Para 14‑9) citing Davie v Edinburgh Magistrates (1953) S.C. 34 at 40.” (see paragraph 8)

136.  Based on the above, after re-hearing all the evidence adduced by the prosecution on the safety of M14, especially the expert opinion of Professor Wu subject to the challenges by Professor Sze and Dr Lee, I have to agree with the criticisms made by both Mr Kwok and Mr Chan in this regard and I am not satisfied that the prosecution has proved beyond all reasonable doubt that there must be signs of warning such as fatigue cracks in the welds which have developed in the right-side platform of M14 long before the accident as proposed by the prosecution.

137.  On the question of the maintenance of M14 by A2 and A1, the prosecution relied on the opinion of PW15 Siu.  On the necessity of checking the bolts and nuts by A2, Mr Leung submitted that A2’s interpretation of the User’s Manual of M14 was too narrow and the checking should cover the larger bolts and nuts at the bolted joints of the lifting cage.  Mr Chan, on the other hand, had referred to the manufacturer’s original manual and there is no mentioning of the necessity to check the bolts and nuts at the bolted joints of the lifting cage.  Further, due to the design of the nuts, it was pointed out that once the nuts are tightened, they would not become loosen easily.  To be fair, I judge that the whether A2 had failed to check the bolts and nuts should be considered in this light.

138.  In my view, A2 also raised a valid point that there were doubts as to whetherany fatigue marks would be visible before the final fracture.  It was submitted that the fatigue crack was initiated from the inside of the welded joint and the crack could hardly be noticed from outside since the steel frame was covered with paint.

139.  Siu also qualified his opinion of checking bolts and nuts by direct visual inspection after it was pointed out to him that these larger bolts and nuts were of high tensile grade and it would not be possible to see whether they have become loosen by just looking at them.  Under cross-examination, Siu proposed to measure and record the lengths of the bolts protruding out of the nuts.  Such proposal did not impress me as practicable.  In any event, it means the checking of the bolts and nuts cannot be done simply by direct visual inspection as he first suggested.

140.  Another criticism of Siu’s proposed method for direct visual inspection of the larger bolts and nuts was that it was never a trade practice, and had never been published by EMSD, either before or after the accident.  I found the criticism well-founded as it smacks of just being wise after the event and counsel for perfection.  The possibility of discovery of fatigue marks when checking the platform bolts and nuts would seem to me to be a mere speculation by Siu. With respect to the learned magistrate, bearing in mind of all the evidence, he has fallen into error by simply accepting Siu’s opinion on the checking of platform bolts and nuts.

141.  Based on the above, by way of re-hearing on the expert evidence regarding the safety and maintenance of M14, I do have reservation on the expert opinions given by Professor Wu as well as Siu relied upon by the prosecution.  The learned magistrate’s preference and reliance on their opinions was not wholly justified in light of the contrary expert evidence adduced by both appellants during the trial.  The convictions on Summons 7 against A1 and Summons 17 and 18 against A2; Summonses 1 – 6 against A1 and Summonses 11 – 16 against A2 were therefore unsafe and unsatisfactory and I would allow the appeals and set aside those convictions.

Conclusion

142.  To recap, based on the reasons as stated above, the appeal against conviction of Summons 1-7 and 9 by A1, Summons11-18 by A2 and Summons 20 by A3 is allowed and I set aside those convictions. The appeal against conviction of Summons 8 and 10 by A1 and Summons 19 by A3, however, is dismissed accordingly.

APPEAL AGAINST SENTENCE

143.  Following the results in the appeal against conviction, it remains for me to only deal with the appeal against sentence on 3 summonses, namely, Summons 8 (Safe system of work) and Summons 10 (Safety Management) against A1 and Summons 19 (Safe system of work) against A3.

Reasons for Sentence

144.  In his reasons for sentence, the learned magistrate referred to the maximum penalties for “Safe system of Work” is $500,000 and for TWP and other offences is $200,000.  He was of the view that present case is serious as two workers died as a result.

145.  The learned magistrate obviously took a serious view on the offences committed by the appellants.  He said:

“ On occupational safety generally on construction site, it is a matter of life and death to workers working on it. For the contractors, it is a matter of costs and efficiency which in the end mean profits.”

146.  He found A1 had neglected its statutory duty to ensure the TWP was safe and without risks to the workers working on it.  He also found the disaster was the result of the TWP being put to excessive use which was the design of A1.  The design of the construction site in this case was a blatant disregard of the need for a safe system of work.

147.  The learned magistrate considered that sentences set for such offences must be realistic and effective for promoting vigilance on occupational safety. Each sentence should send out a strong message that, irrespective of the actual situation, it would never be more convenient and cheaper to pay a fine.  He therefore took the view that the sentence must be set by reference to the maximum fine specified by the legislature.  In this case, he set the fine level at 50% of the maximum.  For this reason, he set the fine on Summons 8 against A1 to be $250,000.

148.  As for A3, the learned magistrate set the fine level at 20% only as he gave special consideration to A3 owing to its financial background.  Also A3’s sole director, Nguyen, was in fact the foreman of the workers and his wife also died in the accident.  He lived in public housing and presently relied on public assistance. 

149.  As for Summons 10 against A1 which was in relation to Safety Management, the learned magistrate accepted reluctantly that the site memo dated 8 October 2013 could be regarded as proper In-House Rules.  A1 was guilty of Summons 10 on the ground that A1 failed “to develop, implement and maintain” it.  On this basis, he set the percentage on the maximum fine of $200,000 at 25%, hence $50,000.

Grounds of appeal against sentence

150.  It was submitted by Al and A3 that the fines imposed by the learned magistrate were manifestly excessive and/or wrong in principle.

151.  Obviously, there is now no need for me to refer to their submissions in full as they would not be relevant to the remaining summonses which convictions had already been set aside.   For the purpose of the present sentences which are fallen to be decided, it was submitted by A1 and A3 that in setting the fines for the summonses, the learned magistrate had :-

(1) considered speculative and/or irrelevant matters;

(2) placed undue weight on fatalities and

(3) failed to consider that neither A1 nor A3 fell far short of the requisite standard.

152.  It was submitted that the setting of a level of fine of 50% of the maximum by the learned magistrate was excessive and not reasonable.  A lower fine subject to the respective shortfall in complying with the legal requirements should be imposed.

Discussion

153.  I shall first deal with Summons 10 against A1 which was in relation to “Safety Management”.  In setting the level of fine at 25% instead of 50% of the maximum, the learned magistrate already accepted, albeit reluctantly, that the site memo could be regarded as proper In-House Rules.  He said A1 was guilty of this summons on the ground that it failed “to develop, implement and maintain” it.  However, the basis of the conviction should now only include the consideration of failing to prohibit the passing of materials and not also the climbing by the workers across to the scaffolds.  On this narrower basis, the seriousness of the offence will also be significantly reduced and there is obviously room for further reducing the fine.  In all the circumstances, I consider that a proper fine should be $25,000 and the appeal against sentence on Summons 10 is allowed to such extent.

154.  Next, I shall deal with the two summonses on “Safe system of work”, namely, Summons 19 against A3 and Summons 8 against A1.

155.  The learned magistrate’s consideration on the seriousness of these two summonses was obviously very much influenced by his findings against A1 and A2 on the other 16 summonses in this trial.  However, as the convictions of those summonses were now set aside as a result of this appeal, it is clear that many of the original considerations by the learned magistrate were no longer applicable for the purpose of sentences on these two summonses.

156.  The basis of convictions for safe working system was the failure by A3 and A1, as a proprietor of industrial undertaking, to provide and maintain a system of work for using M14 and bamboo scaffold, so far as was reasonably practicable, which is safe and without risks to the health of A3’s employee.

157.  According to the original findings by the learned magistrate, the failure to adopt a proper maintenance regime of M14 coupled with arguably, the excessive use of M14 has both contributed to the falling of M14 and obviously posed a serious risk to the health of the workers concerned.  However, as the basis of convictions for both Summons 19 and Summons 8 were now focusing only on the passing of materials between TWP and the bamboo scaffolds, the seriousness of these two summonses is again significantly reduced.

158.  It is clear that it would be no longer justified to impose a fine as high as $250,000, which is 50% of the maximum fine in respect of Summons 8.  In all the circumstances, especially taking into account that no serious incident of materials falling from height which caused injuries to persons or damages to properties was reported, I consider a moderate fine of $50,000 would be sufficient.

159.  As for Summons 19, the learned magistrate was correct to consider A3’s financial background and the fact that its sole director also lost his wife in this fatal industrial accident.  However, by imposing a fine of $100,000, with respect to the learned magistrate, I am of the view that he did not consider sufficiently or at all whether it was within Nguyen’s mean to pay the fine.

160.  In any event, based on the same consideration as Summons 8, the level of the original fine of $100,000 was too high.  I would therefore substitute it with a much lower fine of $20,000, taking into account the financial ability of A3 to pay the fine.

161.  Based on the above, the appeal against sentence on each of these 3 summonses is allowed and the original fines are set aside accordingly.

162.  The respective fine is now reduced as follows:-

A1
Summons 8 (ESS 38217/2014)	$ 50,000
Summons 10 (ESS 38219/2014)	$ 25,000
Total:	$ 75,000
A3
Summons 19 (ESS 38220/2014)	$ 20,000

Costs

163.  Following the result of the appeal, I am satisfied that it is appropriate to and I do make an order that A2, whose convictions I had quashed, be granted its costs of the trial and of the appeal (if any), to be taxed if not agreed.

164.  As for A1, it successfully overturned 8 out of 10 convictions in this appeal.  Accordingly, I am satisfied that it is appropriate to and I do make an order that A1 is to have 80% costs of the trial and of the appeal, with a certificate for two counsel (for the appeal only), to be taxed if not agreed.

165.  As for D3, as it faced only 2 summonses and eventually succeeded in appealing against just one summons, I order that A3 is to have half of the costs of the trial and of the appeal, with a certificate for two counsel (for the appeal only) to be taxed, if not agreed.

166.  In HKSAR v Pang Hung Fai (2015) 18 HKCFAR 1, the Court of Final Appeal said that “certifying a case fit for more than two counsel requires “something exceptional”.” In this case, I am satisfied that this case was not of such an exceptional nature in terms of complexity as to warrant engagement of more than two counsels on behalf both appellants.