ATTORNEY GENERAL v. CHEUNG KEE FUNG CHEUNG CONSTRUCTION CO. LTD.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 874 OF 1989

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J U D G M E N T

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1. This is an appeal by way of Case State. The issue is whether a man who was fatally injured in an accident on a construction site was a "Workman" within the Meaning of the Construction Sites (Safety) Regulations ("the regulations") made under the Factories and Industrial Undertakings Ordinance, Cap. 59 ("the Ordinance").

2. The learned magistrate, who heard two informations, one alleging an offence under regulation 48(1) and the other an offence under regulation 49 (1) of the regulations, held that he was not and acquitted the Respondent.

3. The admitted facts were that on 27th August, 1988 the Respondent was the contractor responsible for the construction site on which the accident occurred. On that day a lorry loaded with cement bags arrived at the site and the driver was directed to unload the bags at a particular place on the site. On the lorry, apart from the driver were three cement transportation workers employed by a sub-contractor of the Respondent. As the three were preparing to unload the lorry a lump of concrete fell whilst two scaffolders were dismantling nylon mesh on the scaffolding. The falling concrete struck the deceased who was one of the three transportation workers. The deceased was not wearing a protective helmet although there was one available for his use on the lorry.

4. The material provisions of the ordinance and regulations read as follows:-

S.2 (1) in this Ordinance ,unless tile context otherwise requires - 'construction work' means-

(a) the construction, erection, installation, reconstruction, repair, maintenance (including redecoration and external cleaning), renewal, removal, alteration, improvement, dismantling, or demolition of any structure or works specified in the Third Schedule; [It is common ground that tile works were so specified]

(b) any work involved in preparing for any operation referred to in paragraph (a), including the laying of foundations and the excavation of earth and rock prior to the laying of foundations, (c) the use of machinery, plant, tools, gear, and materials in connexion with any operation referred to in paragraph (a) or (b).

[Regulation 2(1).] In [the] regulations, unless the context otherwise requires 'construction site' means a place where construction work is undertaken and also any ared 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, 'workman' means a person engaged in construction work.

[Regulation 48(1).] A contractor responsible for a construction site shall -

(a) provide each workman employed on the site with a suitable safety helmet' and

(b) take all redsonable steps to ensure that no workman remains on the site unless he is wearing, a suitable safety helmet.

(2) No person shall enter a construction with unless he is wearing a suitable safety helmet.

[Regulation 49(1).] where workmen are employed at any place on a construction site, the contractor responsible for the site shall take such precautions as are necessary to prevent any workman working at that place from being struck by any falling material or object.

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5. The Respondent's submission which round favour with the learned magistrate was that the deceased was not a workman within the meaning of the regulations because he was preparing to unload the cement from the lorry and so was not engaged or working in construction work. Both sides accept that paragraph (b) is the material limb of the definition of 'construction work'. The reasoning which led the magistrate to find as he did is expressed in the Case as follows:-

"what is preparation is relative. It may mean the very first step or the very last step leading to the doing of some works.

The delivery of cement is in my opinion too remote to be termed in the preparation for the erection or construction of buildings although the mixing of it with gravel and water may be.

The deceased was not engaged in preparation for the erection or construction of building at the time. He was not engaged in construction work. "

6. The first question posed by the Case is whether he was correct in holding as a matter of law that "the deceased was in the circumstances not a 'workman' within the meaning of the Regulation"

7. It is the Appellant's contention that the deceased was a "workman". Mr. Spicer, for the respondent, whilst conceding that the predominant purpose of the delivery of the cement was for use at the construction site, submitted that it was not a question of delivery in this case because the deceased was engaged in an act preparatory to delivery. The deceased, according to this submission, did not begin to deliver until he began to wrap his arms around the first bag of cement for the purpose of lifting it form the lorry.

8. In my view, the bringing of the cement to the construction site for the purpose of unloading it so that it could be subsequently used in construction work on the site was "work involved in preparing for construction". The deceased was engaged in that work because he was there for the express purpose of unloading the cement at the site. He therefore fell squarely within the definition of "workman". Accordingly, the answer to the first question is, "No".

9. The second and third questions ask whether the learned magistrate was correct in acquitting on the charges alleging contraventions of regulations 49(1)(b) and 49(1) respectively. As the acquittals directly resulted from the erroneous finding that the deceased was not a "workman" the answer to each of those questions is also, "No".