THE QUEEN v. TSUI WAI PING

Magistracy Appeal No. 575 of 1993

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H E A D N O T E

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Principal contractor to carry out construction work on 10/F - sub-contractor to erect bamboo scaffolding outside metal structures on 10/F - sub-contractor used roof of structures on ground floor to move bamboo poles by means of ropes - fell from roof and died - principal contractor charged with failure to comply with Regulations 38A(b) and 38P(1) of the Construction Sites (Safety) Regulations.

Ingredients of such offences - definition of construction site in Regulation 2(1) covers principal contractor - roof on ground floor structures not part of construction site for which principal contractor should be held responsible - not in the immediate vicinity; not intended to be used as storage and not reasonably foreseeable as place of work of sub-contractor - Regulations not intended to require contractors to do something unlawful including trespassing on other’s property in order to comply with statutory obligation - deceased sub-contractor trespassed on roof to move bamboo poles; not reasonably foreseeable by principal contractor - safety measures not reasonably practicable under Regulation 3 8A(b) - no such requirement under Regulation 38P)(1).

Regulation 38A(b) covers persons working on the site and is not confined to employees of principal contractor - Regulation 38P(1) covers any person present or found on the site whether working or not and whether employed by principal contractor or not.

Ingredients of offences not proved - convictions quashed.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.575 OF 1993

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J U D G M E N T

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1. The appellant was convicted after trial of two offences for failing to comply with regulation 38A(b) and regulation 38P(1) of the Construction Sites (Safety) Regulations made under the Factories and Industrial Undertakings Ordinance, Cap.58.

2. The appellant was a decoration contractor. He was engaged by the owner (PW1) of the premises situated at 10th Floor, Tak Fung Building, 91A Lai Chi Kok Road to carry out decoration work therein. It was a small contract for the sum of $65,000. The work included the dismantling of two metal structures (which were commonly described as cages) at the external wall of the premises. For the dismantling work, it was necessary to erect a bamboo scaffolding outside the metal structures. The appellant sub-contracted the scaffolding work to a Mr Tam Kwok Hung who was himself a scaffolding worker. Mr Tam also employed another worker, a Mr Tam Cheuk Bun (PW2). The contract price for the erection of the bamboo scaffolding was $9,500.

3. On 31st July 1992, Mr Tam Kwok Hung together with his worker delivered several bundles of long and short bamboo posts to the Tak Fung Building. Since the long bamboo posts were as long as 10 odd ft., Mr Tam and his worker were unable to transport them by the lift to the 10th Floor. According to the worker, they intended to drop some long ropes from the premises on the 10th Floor to the ground floor and pulled the bamboo posts up by means of the ropes. Mr Tam went up to the 10th Floor and dropped the ropes down therefrom to the ground floor of the building where there was a rear lane. When they were at the rear lane, they discovered that there was a metal structure on the ground floor. They climbed up to the roof of the metal structure using a bamboo ladder which was already there. They had to do so because it was quite difficult, if not impossible, to pull the bamboo posts from the rear lane on the ground floor up to the 10th Floor due to the presence of this metal structure and some similar structures erected on other floors. Mr Tam and his worker intended to carry the bamboo posts up to the roof of the metal structure on the ground floor. From there, these bamboo posts would be pulled up to the 10th Floor. They had managed to carry some of the bamboo posts onto the roof. Mr Tam then stood on the roof of the metal structure and tried to find an appropriate space where it was most convenient to pull the bamboo posts up to the 10th Floor.

4. The adjoining building, the Yau Fung Building, had a similar metal structure on the ground floor next to the rear lane. The roof of the metal structure on the ground floor of the Tak Fung Building and the roof of the metal structure on the ground floor of the Yau Fung Building overlapped slightly at the place where they met although the two levels were about 1½ ft. in difference. The roofs of these two structures were slanting a little downwards. There were some water patches on the roof of the metal structure at Yau Fung Building On that day, when Mr Tam was walking along the roof in order to find the best location where he could pull his bamboo posts from the roof of the metal structure up to the 10th Floor, he apparently stepped on the water patches, slipped and fell off the edge of the roof to the ground. The roof was about 15 ft. high. As a result of the fall, Mr Tam died.

5. The appellant was charged with failing to comply with regulation 38A(b) and regulation 38P(1) of the Construction Sites (Safety) Regulations. At the trial, the Crown called a number of witnesses including a Safety Officer and a Factory Inspector of the Labour Department to testify on what safety measures ought to have been taken on the roofs of the metal structures on the ground floor and the possibility of erecting suitable guard-rails around the said roofs. The learned magistrate in a very well prepared and comprehensive Statement of Findings held that the appellant had failed to comply with these regulations. He found that the roofs of the metal structures on the ground floor could be considered as part of the construction site of the appellant. He also considered that the roof of the metal structures on the ground floor of  Tak Fung Building and that on the ground floor of Yau Fung Building formed a continuous piece of roof. He held that the appellant was the contractor responsible for the said construction site He took the view that if the appellant had directed his mind to the matter or had made enquiry with the sub-contractor (the deceased Mr Tarn) he would have no difficulty in knowing that Mr Tam would make use of the roofs. The appellant should therefore be under an obligation to make the roofs safe and to erect suitable guard-rails on the said roofs. The learned magistrate also held that the safety measures suggested by the Safety Officer and Factory Inspector were reasonably practicable. As a result of his findings, he convicted the appellant.

6. In this appeal the appellant relied on three gounds. First, counsel argued that the learned magistrate was wrong in finding that the relevant provisions afforded protection to the deceased Mr Tam. He submitted that the statutory duty owed by the appellant under the two regulations in question was confined to his own workmen and that the word “person” in the regulations should refer only to the employees of the appellant. Since the deceased Mr Tam was himself a sub-contractor, he did not fall within the regulations. Counsel relied on the case of Wingrove v. Prestige & Co. Ltd., [1954]1 A.E.R. 576 in which the Court of Appeal in England interpreted a similar provision in the Building (Safety, Health and Welfare) Regulations 1948. Second, counsel for the appellant submitted that the learned magistrate was wrong in holding that the place where the deceased Mr Tam fell was part of the construction site within the meaning of the regulations. He argued that the deceased fell from the roof of the metal structure on the ground floor of Yau Fung Building which was separate and different from the roof of the metal structure on ground floor of Tak Fung Building and that in any event that part of the roof was not part of the construction site which could only be confined to the 10th Floor of Tak Fung Building. He further said that the roof of the metal structure on the ground floor of Yau Fung Building was not the place of work of the deceased. It was only a place of convenience. It was never anticipated by the appellant that that could be the deceased’s place of work. Counsel relied on the case of Morrow v. Enterprise Sheet Metal Works (Aberdeen) Ltd., [1986] S.L.T.697. Third, counsel submitted that the learned magistrate was wrong in holding that the suggested measures and the guard-rails required under regulation 38P(1) were reasonably practicable.

7. Counsel for the Crown argued that “contractor responsible for the construction site” in the Hong Kong Regulations included the principal contractor and that “person” on the construction site should not be confined only to employees of the contractor or those of the principal contractor. He relied on the cases of Attorney General v. John Lok [1986] HKLR 325 and Attorney General v. Liu Ching Sun, unreported, Crim. App. No.438 of 1986. With regard to the argument on the scope of the construction site, counsel submitted that by virtue of regulation 2, the construction site in the present case was not restricted to the 10th Floor of Tak Fung Building but also extended to the roofs on the ground floor structures of the two buildings. He argued that the bamboo posts were intended to be stored on the roofs before being pulled to the 10th Floor. He sought to distinguish the case of Morrow v. Enterprise Sheet Metal Works (Aberdeen) Ltd. Counsel further argued that the suggested safety measures, e.g. placing crawl boards on the roofs were regarded as reasonably practicable. Finally, he submitted that under regulation 38P(1), the guard-rails were only required at the opening or edge of the roof from where people could fall and that such requirements could not be regarded as unreasonable. In any event, that regulation did not require any element of reasonable practicability.

8. Regulations 38A(b) and 38P(1) of the Construction Sites (Safety) Regulations provide as follows :

38A Without prejudice to the other provisions of this Part, the contractor responsible for any construction site shall ensure that -

(b)     Every place on the site at which any person at any time works shall, so far as is reasonably practicable, be made and kept safe for any person working there.

38P(1) The contractor responsible for a construction site shall ensure that every opening, corner, break, edge or other dangerous place through or from which any person on the site is liable to fall a distance of more than 2 metres is provided with either -

(a)      A suitable guard-rail or guard-rails of adequate strength to a height of between 900 mm and 1,150 mm above the surface across which persons are liable to pass so erected as to prevent as far as possible the fall of persons;

9. To establish a case under regulation 38A(b), the Crown must prove three essential ingredients. First, the defendant was the contractor responsible for the construction site. Second, the place in question was a place on the construction site at which any person at any time works. Third, the defendant had failed to ensure that the place in question was at the material times made and kept safe so far as reasonably practicable.

10. I do not think there is any difficulty in respect of the first ingredient. Regulation 2(2) makes provision for what type of person should be responsible. It provides :

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

11. It is clear and was in fact not seriously disputed by both parties that the appellant as the principal contractor was a contractor responsible for a construction site.

12. With regard to the second ingredient, I think there are two matters to be looked into. First, whether that place in question can be regarded as part of the construction site on which the work is to be undertaken and second, whether that is a place at which any person at any time works. Construction site is defined in regulation 2(1) as follows :

Construction Site means a place where construction work is undertaken and also any area in the immediate vicinity of any such place which is used for the storage of materials or plant used or intended to be used for the purpose of the construction work.

13. In the present case, it was not disputed that the appellant was to carry out decoration work on the 10th Floor of Tak Fung Building. The metal structures which were to be dismantled were also outside the 10th Floor. The bamboo scaffolding was to be put up immediately outside the metal structures. These parts were certainly the construction site. Was it extended by regulation 2(1) and if so, how far was it extended to?

14. It was the intention of the deceased Mr Tam who wished to have the necessary bamboo posts of various lengths delivered to the 10th Floor for the purpose of erecting a bamboo scaffolding up there. But because of the size of the lift, he could not move them up by means of the lift. Due to the obstructions caused by the metal structures on the ground floor and on several of the intervening floors, the deceased Mr Tam had to carry the bamboo posts from the ground floor at the rear lane onto the roof of the ground floor structures and from there they would be pulled by ropes up to the 10th Floor. Because of the bulk of the bamboo posts, they had to be carried by lots onto the roofs of the ground floor structures. So during the process of moving the bamboo posts, some of them had to be temporarily placed on the roofs of the ground floor structures. The learned magistrate held that because these bamboo posts had to be stored on the roofs, that place would be covered by the definition of construction site in regulation 2(1). In other words, the construction site on the 10th Floor of Tak Fung Building was extended to cover the roofs of the metal structures, on the ground floor of the two buildings.

15. With respect to the learned magistrate, I do not think such an extension of the construction site in the present case could be justified. First, the statutory extension covers any area which is in the immediate vicinity of the place where construction work is undertaken and is used for the storage of materials for use in the work. An area is in the vicinity of the site if it is close to or near the site or surrounding the site. This of course is a matter of degree and depends very much on the circumstances of each case. However, in order to give some meaning to the word “immediate”, an area in the immediate vicinity of site must, in my view, be more than close to or near the site. The Shorter Oxford English Dictionary gives one of the meanings of the word “immediate” as “having no person, thing or space intervening, in place, order or succession; proximate, nearest, next; close, near”. I have therefore grave doubts as to whether the roofs on the ground floor structures could be described as an area in the “immediate vicinity” of the 10th Floor.

16. Then the area, to fall within the extension of the construction site, must be used for the storage of materials. It is true that the deceased Mr Tam intended to place his bamboo posts for the time being on the roofs of the ground floor structures. However, that was for the transient purpose of enabling him to move these bamboo posts up to the 10th Floor for use there. I do not think that Mr Tam intended to place the bamboo posts on the roofs as a storage. In my view, he only intended to and did use the roofs of the ground floor structures for the purpose of transporting the bamboo posts up to the 10th Floor. To regard the roofs as a storage of materials to be used for the construction work is taking too restricted a view of the matter. An easy example would illustrate the fallacy of this view. If the lift of the building was big enough to carry the bamboo posts from the ground floor to the 10th Floor and if Mr Tam had to carry the bamboo posts by stages into the lift, it would have been inevitable to leave some bamboo posts inside the lift while he went out to carry more. Would one sensibly regard the lift as an extension of the construction site on the 10th Floor? If Mr Tam had placed some of his bamboo posts in the lift lobby so that the bamboo posts could be moved into the lift and carried up to the 10th Floor, would one seriously regard the lift lobby as an extension of the construction site? In these circumstances, I cannot agree that the roofs from which the deceased Mr Tam fell to his death could be regarded as part of the construction site.

17. There is another reason why it cannot be so regarded. Regulation 38A(b) imposes a statutory obligation on the contractor or principal contractor to make and keep the place of work on the site safe, as far as reasonably practicable. In order to discharge this obligation, the contractor or principal contractor must be in a position to know or at least foresee what his construction site would be and what sort of safety measures would be needed. What sort of dangers are foreseeable and hence, what sort of safety measures are required is, to a large extent, dependent upon what the construction site is. I derive some assistance from the opinion of Diplock L.J. in Taylor v. Coalite Oils & Chemicals Ltd. at p.319 :

“Safe is the converse of dangerous. A working place is safe if there is nothing there which might be a reasonable foreseeable cause of injury to anyone working there, acting in a way in which a human being may reasonably be expected to act, in circumstances which may reasonably be expected to occur : see John Summers & Sons Ltd. v. Frost [1955] A.C.740 per Lord Reid at p.766. In determining whether the occupier was under a duty to take any measures to prevent an accident which was caused by the presence at a working place of a particular object, it is necessary to ask, first, whether the possibility of an object of that kind being at that particular place was reasonably foreseeable, and, if so, secondly, whether it was reasonably foreseeable that it would be a cause of injury to a person working there. It is only if both these questions are answered affirmatively that it becomes necessary to consider whether it was reasonably practicable to aver the danger.”

18. This was approved and applied by the three judges in the Scottish case of Morrow v. Enterprise Sheet Metal Works (Aberdeen) Ltd. Although this passage deals with the issue of whether a safety measure is reasonably practicable or riot, it throws light on how the court should approach the question of what a construction site is. In my view, not every place or area where the workers of the contractor or principal contractor are present or happen to be found can be regarded as part of the construction site for which the contractor or principal contractor must be responsible. Regulation 2(1) no doubt gives a definition of construction site. But there are certainly many types of construction work and workers may be found in one place or another for various reasons. In order for the contractor or principal contractor to discharge his statutory obligation to make and keep his construction site safe, I think the perimeter of his construction site should only be the place where he can reasonably foresee to be the place where the construction work is to be undertaken and where his materials would be stored. If any of his workers goes beyond the place where one can reasonably foresee to be the place of work or place of storage, I do not think the contractor or principal contractor can reasonably be expected to make and keep such other place safe. As the Lord Justice-Clerk (Ross) said in the Morrow’s case, this would mean that the perimeter of the construction site can be dictated by where the workers choose to go or to work. In my view, the definition of construction site in regulation 2(1) should be given a liberal interpretation and a common sense approach should be adopted. In the construction industry in Hong Kong, I think it is all the more important to adopt such an approach. The contractor, and even more so the principal contractor, must be in a position to ascertain the scope of his statutory duty and it is only fair that the extent or perimeter of his construction site can be reasonably foreseeable.

19. In the present case, the appellant was the principal contractor of the work to be carried out on the 10th Floor of Tak Fung Building Such work included the demolition of the metal structures on that floor. The demolition work involved the erection of a bamboo scaffolding around the metal structures. One would naturally envisage that the bamboo posts would be carried or moved up to the 10th Floor. The normal way of doing this was by means of the lift or the staircase. If the work was to be done on the first few floors, one might perhaps foresee that the bamboo posts might be pulled up from the ground floor on the outside. Where the work, as in the present case, was to be carried out on the 10th Floor, I think it is doubtful whether one could expect that the bamboo posts would be pulled up by ropes from the ground floor to the 10th Floor. It might not be reasonably foreseeable that this was a mode of carrying or moving the bamboo posts to the place where the decoration work was to be carried out. But it would be even more difficult to foresee that the deceased Mr Tam would make use of the roofs of the metal structures on the ground floor. I do not think that one can reasonably foresee that such roofs would be considered as part of the construction site.

20. Counsel submitted that only the employees of a contractor were protected by the regulation and since the deceased Mr Tam was not employed by the appellant, the appellant was not the contractor responsible for him. Reliance was placed on the English Regulations and authorities.

21. Regulation 5 of the English Building (Safety, Health and Welfare) Regulations, 1948, although quite similar to regulation 38A(b) of our Construction Sites (Safety) Regulations, has one important difference. There is, so far as Counsel could show me, no reference to “a contractor responsible for a construction site” in the English provisions. Since the English regulation 5 imposes upon a contractor a duty to provide reasonably practicable safety measures, that duty is obviously owed only to persons employed by him. Thus in Wingrove v. Prestige & Co. Ltd., the Court of Appeal held that a clerk of works employed by the local authority to supervise the work was not within the ambit of regulation 5 because he was not employed by the contractor. The Hong Kong regulations are clearly intended to cast a wider net by imposing the duty on “contractors responsible for a construction site”. Since a principal contractor is also treated as a contractor responsible for a construction site by virtue of regulation 2(2), I do not think it can be argued that the protection offered by regulation 38A(b) is restricted only to the employees of the principal contractor or that “person” working on the site refers only to employees of the principal contractor. If it were so, the principal contractor would be under no responsibility at all if all he did was to sub-contract the work to other contractors. He would then have no person employed by him and would not be caught by these regulations. This would defeat the purpose of the legislation. In my view, it is the clear intention of these regulations to cast upon the contactor undertaking the work as well as the principal contractor responsible for the construction site the burden of ensuring industrial safety for any person who is working on the site irrespective of who his employer is. If the sub-contractor himself works on the site, he is also within the protection of the safety measures required by the statute.

22. For the reasons which I have ventured to set out above, I am of the opinion that the second ingredient had not been established.

23. I now come to the third ingredient. Regulation 38A(b) only requires the contractor or principal contractor to make and keep their working place safe so far as is reasonably practicable. I need not repeat the opinion of Diplock L.J. in the Taylor’s case referred to above. What sort of safety measures are required depends on a number of factors. These include the nature and type of work to be undertaken, what sort of dangers are reasonably foreseeable, the risk of such dangers, the consequences of such dangers, the number of workers exposed to such dangers and the expense and trouble needed to alleviate such dangers and to minimise the risk involved.

24. Apart from these considerations, I think it is also implicit in the regulation that what is required to be done by a contractor or principal contractor to make and keep the place of work safe must be something which can be lawfully done. It is clearly not the intention of the legislation to require or expect the contractor or principal contractor to do something unlawful or impossible in order to comply with the regulation. It must be something which is within the power and control of the contractor or principal contractor to do.

25. In the present case, I do not think the appellant could have reasonably foreseen that the deceased Mr Tam would make use of the roofs of the ground floor structures for the purpose of carrying the bamboo posts up to the 10th Floor. It was even less reasonably foreseeable that he would go round the roofs in the manner he did to look for the most convenient path to pull his bamboo posts up. The danger and consequence of falling from such a place were clearly not reasonably foreseeable by any contractor or principal contractor undertaking to carry out decoration work on the 10th Floor of the building. The prosecution witnesses testified to the effect that some crawl boards could have been placed on the roofs and that this was reasonably practicable. If the danger and consequence were reasonably foreseeable, I would agree that perhaps this might be so. But the important thing which I think is fatal to the prosecution’s case is that Mr Tam was in fact trespassing on the roofs of the ground floor structures which belonged to the owners or occupiers on the ground floor. That this would happen was certainly not reasonably foreseeable by the appellant. I think the regulation does not require the appellant to trespass on other’s properties in order to comply with the statutory obligation. He had no power or control over that property. It was said in evidence by the Safety Officer and Industrial Inspector that they expected the owners or occupiers of the roofs to co-operate and allow the appellant to put crawl boards on the roofs if the appellant had requested to do so. This might or might not be the case. But I do not think that this is within the anticipation of the legislation or the contractor or principal contractor.

26. In fact this suggestion exposes the fallacy of the argument and strengthens my view that the legislation does not and will not require the contractor or principal contractor to do something unlawful in order to comply with the statutory obligation. If it were otherwise, what would be the position if the owner or occupier of the roofs did not accede to such a request, even though the request was a reasonable one? What would be the position if the owner or occupier did not even allow any person to go up to the roofs? What would happen if the roofs were simply not safe to climb on in the first place and Mr Tam had fallen as soon as he attempted to climb on the roofs? This series of questions further support my conclusion that the roofs of the ground floor structures could not be regarded as part of the construction site. In my opinion, the appellant could not be expected to do something unlawful, such as to trespass on another’s property, in order to comply with this regulation and that in any event what was suggested that he should have done was certainly not reasonably practicable in the circumstances. I hold that the third ingredient of this offence had not been established either.

27. With regard to the offence under regulation 38P(1), the same considerations apply. For an offence under this regulation, the Crown must also prove three ingredients. First, the defendant was a contractor responsible for the construction site. Second, there was an opening, corner, break, edge or other dangerous place through or from which any person on the site may fall more than 2 metres. Third, the defendant had failed to ensure that the opening, corner, break, edge or other dangerous place was provided with a suitable guard-rail of specified measurements.

28. The appellant who was the principal contractor could be regarded as the responsible contractor. However, for the reasons which I have set out in relation to regulation 38A(b), the roofs from which the deceased Mr Tam fell to the ground could not be regarded as part of the construction site. The submission of counsel for the appellant also fails in respect of regulation 38P(1). His analogy with the English provisions was not applicable at all. Regulation 38P(1) which is different from regulation 38A(b) does not even require that the person liable to fall through an opening or edge on the site to be a person working on the site. It is clearly aimed at any person present on the site whether he is working or not and whether he is employed by the contractor or principal contractor. It is sufficient to show that there are people who can be expected to be on that part of the site where there is an opening, corner, break, edge or other dangerous place through or from which people are liable to fall more than 2 metres high. This difference however does not affect the conclusion I have reached with regard to the question whether the roofs on the ground floor could be regarded as part of the construction site.

29. As to the third ingredient under regulation 38P(1), it is also different from regulation 38A(b) in that it is no longer necessary for the prosecution to show that the safety measures to be carried out must be reasonably practicable. If there is indeed an opening, corner, break, edge or other dangerous place through or from which any person on the site is liable to fall more than 2 metres high, the contractor responsible must ensure that the suitable guard-rails of the specified measurements are erected or provided. In other words, a defendant cannot put up the defence that to do so would not be reasonably practicable. Nevertheless, I take the view that under regulation 38P(1), it is also not the intention of the legislation to require the contractor or principal contractor to do something which is unlawful or impossible. Although it can be said that regulation 38P(1) imposes a strict liability, I do not think the contractor or principal contractor is obliged under this regulation to trespass onto another’s property in order to provide or erect the suitable guard-rails. As I said earlier, it was not reasonably foreseeable by the appellant that the deceased Mr Tam would trespass on and make use of that part of the roofs on the ground floor.

30. For the reasons which I have given above, I take the view that the Crown had failed to prove all the ingredients of these two offences. With respect to the learned magistrate who had so thoroughly analysed the case, I do not think he had come to the correct conclusion. In the circumstances, the convictions must be quashed and the fines set aside.