HKSAR v. SHUN SHING CONSTRUCTION & ENGINEERING CO. LTD.

HCMA322/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.322 OF 1998

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J U D G M E N T

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1. The Appellant Company was convicted by Mr Peter Law, sitting at San Po Kong Magistracy, of an offence under Reg.38B of the Construction Sites (Safety) Regulations made under the Factories and Industrial Undertakings Ordinance, Cap.59.

2. The conviction was on 24th February 1998, and as a result the Company was fined HK$45,000. The Company has now appealed against that conviction.

3. There was no evidence called at the trial and the only evidence before the learned Magistrate was in the form of admitted facts under s.65C and two photographs which presumably were part of the admitted facts. The admitted facts are as follows :-

(A) The site was in operation with about 100 workers. Concrete laying and formwork erection works were in progress.

(B) Retaining walls were built around the carpark at Basement B1.

(C) Horizontal steel I-beams were fixed onto the retaining walls as supports.

(D) A worker was seen working on a horizontal steel I-beam removing concrete chips from the top of the I-beam with a portable electric concrete breaker.

(E) The I-beam was 330 mm wide and 320 mm thick in cross section.

(F) The top of the I-beam was 2.5 m above the ground.

(G) No fencing was provided to the I-beam.

(H) The I-beam could not be considered as a suitable scaffold.

(I) No suitable scaffold was provided, placed and kept in position for the worker to work on the I-beam.

Another admitted fact was that the Appellant Company was the contractor responsible for the construction site in question, and that on 19th August 1997, two occupational safety officers had inspected the site.

4. The Summons upon which the Appellant was convicted, alleges that on that day, at the site in question in Chung Hau Street in Homantin, where work could not safely be done on or from the ground or from part of a building or other permanent structure, the Appellant did fail to provide, place and keep in position for use scaffolds which was sufficient, strong and suitable for the purpose.

5. Miss Cheng, appearing for the Appellant, has advanced six grounds of appeal, the first of which is that there was no evidence or sufficient evidence in respect of whether the work in question could or could not safely be done on or from the ground, part of a building or other permanent structure, and the prosecution has therefore failed to discharge its burden of proof in relation to this element of the offence. The second ground is really related to the first, and that is the learned Magistrate erred in law in concluding that there was a prima facie case to answer when the evidence required, as set out in ground 1, was lacking.

6. There was, as I said, no witnesses called for the prosecution or for the defence. Mr Simon Tam, appearing for the Respondent, had submitted that on the facts which were before the Magistrate, the Magistrate was entitled to come to the conclusion that the work which was being done could not safely be done from either the ground or from part of a building or other permanent structure. He submitted that the work quite clearly could not be done safely or otherwise from the ground because the work was in fact being done on the I-beam which was 2.5 m above the ground. He said that on the evidence before the Magistrate, the work was being done from or on a permanent structure, the permanent structure being the I-beam. He submitted that on the evidence before the learned Magistrate, the Magistrate was entitled to come to the conclusion that that work could not safely be done on or from the I-beam. He relied specifically on the fact that the I-beam was 2.5 m above the ground, the I-beam was only 330 mm, which is about 13 inches wide, no fencing was provided to the I-beam and the fact that the worker on the I-beam was doing the work of removing concrete chips from the top of the I-beam with a portable electric concrete breaker.

7. Miss Cheng has submitted with some force that inasmuch as all the facts were admitted, there simply wasn't any evidence before the learned Magistrate to enable the learned Magistrate to come to that conclusion. She refers specifically to the fact that there was no evidence of how the concrete chips were being removed; how the worker was doing the chore, whether he was standing up or squatting down; how the portable electric concrete breaker operated; for how long the operation went on, and she said finally that the operation must have concluded successfully.

8. I am not sure that Miss Cheng is entitled to say or to ask me to say that the operation was concluded successfully. We just do not know what happened. It would appear that because of the arrival of the occupational safety officers at the scene, the worker concerned, quite understandably, put a stop to whatever he was doing. The fact that a worker was removing concrete chips from the top of the I-beam, which is 2.5 m above the ground, using a portable electric concrete breaker, and there were no fences around the I-beam is, in my judgment, sufficient for the Magistrate to come to the conclusion that the work could not safely be done as was being done on that day.

9. It is a very evenly balanced matter whether the evidence, in the form of the admitted facts, was sufficient. Whatever the result of this appeal, I think this case highlights the dangers, at least for the prosecution, of agreeing all the prosecution facts without calling any oral viva voce evidence. If one of the two occupational safety officers had been called, presumably he would have been able to cast more light on the operation, what it involved and what he observed, which would have enabled the learned Magistrate to more easily come to a conclusion either way.

10. I say that the matter is very evenly balanced because when Miss Cheng referred me to one of the photographs, Exhibit P2B, it does show that the width of the I-beam is quite narrow and does in a way support the prosecution's contention that working on that I-beam breaking up concrete with a concrete breaker is ipso facto unsafe. But the photograph also shows that there were in fact two limbs of the I-beam which are at one point joined together. So that it was not as if the worker was just standing on a straight narrow I-beam. At that point where the two limbs were joined together, the worker would have had much more space to position himself and to work which might conceivably make the work a little bit safer. But I think for me to come to the conclusion that all the time that the worker was breaking the concrete, he was standing at that juncture where the two limbs are joined together and never once did he move onto one of the two limbs, is for me to either shut myself from reality, or to use too vivid an imagination to the detriment of the prosecution.

11. I have mentioned the dangers to the prosecution of not calling viva voce evidence, but I think on the facts which are before the Magistrate, they are sufficient for him to come to the conclusion that the work could not safely be done from the top of the I-beam.

12. Miss Cheng, in her initial submission, had submitted that s.38B could be construed to mean that the scaffold or the ladder or the other means of support, is necessary to provide access to the working place and because the working place was the I-beam, a ladder which can barely be seen in photograph Exhibit P2A could have provided that access and the fact that the worker was on the I-beam is ex facie evidence to show that that means of access was suitable for the purpose. When she replied to Mr Tam's submission, she did not pursue that submission with the same vigour probably because it would appear that Mr Tam is correct when he says that s.38A is a general provision which provides for practicable, suitable and sufficient safe access to and egress from every place on a site at which any person at any time works. So access to a working place would seem to be covered by the general provisions of s.38A and s.38B, in my judgment, does not apply to the situation of providing access to a working place and providing means of support to enable the work which is done, to be done safely.

13. Miss Cheng is also handicapped in that original submission by the fact that in s.2, the definition of ladder says that it does not include a folding step ladder. What appears on the photograph appears at best to be a folding step ladder and quite apart from the fact whether there was sufficient evidence before the Magistrate for him to conclude that it was a ladder, I think the fact that this folding step ladder is not regarded as a ladder for the purpose of s.38B is sufficient to put paid to that original submission by Miss Cheng. In Miss Cheng's reply, she says that if I find that the Magistrate was entitled to find that the work could not safely be done from the I-beam, then I should consider the next question which is : did the Appellant, who was the contractor responsible for the construction site, provide place and keep in position for use and properly maintain not just scaffolds, which are the things averred in the charge, but where appropriate, ladders or other means of support, all of which shall be sufficient, strong and suitable for the purpose. I agree that the defence is not confined to scaffolds which is what the prosecution elected to aver in the charge, and I agree that the defence is entitled to say that ladders or other means of support were provided which was sufficient or were sufficient, strong and suitable for the purpose. The fact of the matter is there were no scaffolds of any form, shape or nature which were provided. There were no ladders which were provided. Miss Cheng submits that there were other means of support in the form of the I-beam itself which can be regarded as sufficient, strong and suitable for the purpose.

14. I find that the I-beam was the permanent structure from which the work was being done and inasmuch as I have upheld the decision by the Magistrate that the work being done from the I-beam could not be done safely, in my judgment, one cannot then go back to the same I-beam and say that that I-beam is a means of support which is sufficient, strong and suitable for the purpose.

15. Miss Cheng submits that "support" here means support for the working place. I do not find it necessary, in this judgment, to determine what means of support in this context should mean. I think it is sufficient for the purpose of this appeal that I have said that the work could not be done safely and that no means of support suitable for the purpose were provided.

16. I think I ought to refer to Miss Cheng's other grounds as well. Her third ground is that the learned Magistrate was adopting a subjective test or indulging in a subjective conjecture to come to the conclusion that the work could not safely be done. Mr Tam submitted that the Magistrate clearly was adopting an objective test. In the light of my finding that the learned Magistrate was entitled to come to that conclusion, I think that is really not very much to this ground of appeal.

17. Ground four is that the learned Magistrate failed to give any or any sufficient consideration to the fact that the work was actually safely completed from a permanent structure - the I-beam in question. I believe I have dealt with that.

18. Then ground five asserts the presence of the ladder, which I rather take Miss Cheng to have finally abandoned.

19. Ground six is the learned Magistrate erred in construing the meaning of s.38B as if it was to have the same meaning and intent as s.38P of the same Regulations when he found that there was no guardrails to prevent a person falling from a height.

20. Section 38P is of course a different section from s.38B and deals with the provision of guardrails where there is an opening corner break, edge or other dangerous place through, or from which a person on the site is liable to fall a distance of more than two meters. In my judgment, the learned Magistrate was not considering s.38P in his Statement of Findings and what he was simply doing was to point out that because the I-beam had no guardrails of any sort, that was another matter which he took into account in coming to his conclusion that the work could not safely be done from the I-beam. I think he was entitled to do that and the fact that there were no guardrails around the I-beam was certainly a matter that the learned Magistrate was entitled to consider in coming to his conclusion.

21. The up-shot of all that I have said is that the appeal has to be dismissed. I am grateful to Counsel for their assistance on the construction of this rather difficult Regulation.