SECRETARY FOR JUSTICE v. CHINA ROAD AND BRIDGE CORPORATION AND OTHERS

[English Translation - 英譯本]

HCMA 158/2022

[2023] HKCFI 3070

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CASE STATED

MAGISTRACY APPEAL NO 158 OF 2022

(ON APPEAL FROM TMS 1302-1304 OF 2019)

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JUDGMENT

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A.  Foreword

1.  The appellant, the Secretary for Justice, laid an information (Summonses TMS 1302-1304/2019) against the three respondents under the Construction Sites (Safety) Regulations (Cap. 59I) made under regulations 48(1)(b) or 48(1A)(b), 68(1)(a) and 68(2)(b)[1] of the Factories and Industrial Undertakings Ordinance (Cap. 59), Laws of Hong Kong.

2.  The contents of the three summonses are basically similar. On 6 August 2018, the 1^st and 2^nd respondents, being contractors responsible for, and the 3^rd respondent, being a contractor who had direct control over, the construction work at HY/2013/12 Tuen Mun to Chek Lap Kok Link—Northern Connection Toll Plaza and Associated Works (the job site at south side of Lung Mun Road), failed to take all reasonable steps to ensure that no workman remained on the site unless the workmen were wearing suitable safety helmets.

3.  On 12 August 2019, the case was heard in Tuen Mun Magistracy before deputy magistrate Hui Siu Keung (“the magistrate”). On 5 September 2019, the magistrate acquitted the three respondents of their respective summons charged.

4.  The appellant filed an application for review of the magistrate’s decision. On 18 December 2019, a review hearing was held before the magistrate. The magistrate gave his decision on 23 January 2020 rejecting the appellant’s application for review and upheld the decision.

5.  The appellant appealed against the acquittals of the 1^st to 3^rd respondents by way of case stated. The question of law in the present case on which the advice of the Court of First Instance was sought is as follows:

“Under regulation 48(l)(b) or 48(1A)(b) of the Construction Sites (Safety) Regulations (Cap. 59I), is the contractor responsible for a construction site, or the contractor who has direct control over the construction work, required to ensure that workmen are fitted with safety helmets and that the chin straps of the safety helmets are fastened to their lower jaws?”

B.  Admitted Facts

6.  The prosecution and defence admitted most of the prosecution case under section 65C of the Criminal Procedure Ordinance, Cap. 221, Laws of Hong Kong (see Exhibit P1), including the following:

(1)  On 6 August 2018, the occupational safety officers of the Labour Department, Lin Sun Hung, Fong Ka Po and Johnson Loo inspected the site.

(2)  On the same day, during their inspection of the site, Fong Ka Po and Lin Sun Hung respectively took a number of photographs, which truly reflected the situation as seen at the scene.

(3)  The expert status of the prosecution’s occupational safety expert, Lo Hei, was not in dispute.

C.  The Case

The Prosecution Case

7.  The facts of this case are not complicated. The undisputed fact is that on the day of the incident, officers of the Labour Department inspected the scene and saw six workmen working in the construction site. Although they had safety helmets on their heads, the chin straps of the helmets were either tucked inside the helmets or placed on the edges of the helmets without being fastened to their lower jaws. Prosecution witnesses also saw posters at the entrance to the site reminding workmen to wear safety helmets, but there was no notice reminding workmen to correctly fasten their chin straps.

8.  According to Lo Hei, the expert witness, the hazards arising from not properly fastening the helmet chin strap were caused by the risk of head injuries to workmen working on construction sites from [i] being struck in the head by falling objects, [ii] hitting the ground during a fall from height and [iii] hitting a protruding object in the construction site.

9.  The witness also pointed out the safety measures[2] relating to the chin strap:

“Basically, a helmet consists of three main components, namely the shell, the harness and the chin strap. The chin strap is part of the fastening system that secures the helmet to the workman’s head and prevents the helmet from falling off during an impact or a fall from height. Therefore, to effectively minimize the risk of head injury, workmen should be provided with and properly use helmets fitted with a chin strap. The chin strap should be properly fastened to the workman’s lower jaw.” [3]

10.  By reason of the above, the Labour Department prosecuted the three respondents. At the trial, the prosecution expert witness presented the “Guidance Notes on the Selection, Use and Maintenance of Safety Helmets” issued by the Occupational Safety and Health Branch of the Labour Department (Exhibit P19).

The Defence Case

11.  The defence did not dispute the opinion of the expert witness.

12.  The defence is, in short, that there is no legal provision or requirement for wearing a chin strap.

The Relevant Legislation

13.  Regulation 48 of the Construction Sites (Safety) Regulations (Cap. 59I) reads as follows:

“Safety helmets

(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 reasonable steps to ensure that no workman remains on the site unless he is wearing a suitable safety helmet.

(1A) Any contractor who has direct control over any construction work shall—

(a) provide each workman employed to carry out the construction work with a suitable safety helmet; and

(b) take all reasonable steps to ensure that no workman employed to carry out the construction work remains on the site unless he is wearing a suitable safety helmet.

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

The Magistrate’s Decision

14.  The magistrate endorsed the defence of the respondents. The magistrate pointed out that there is no clear wording in regulation 48(1)(b) or 48(1A)(b) which stipulates that the chin strap of a safety helmet should be fastened to the workman’s lower jaw. A “suitable safety helmet” is a safety guideline that provides protection to the head and minimizes head injuries. In terms of construction, the helmets in question should comply with the mandatory requirements of certain international/national standards. Construction contractors are required to ensure that no workman remains on the site unless he is wearing a safety helmet. He pointed out that if it were the intention of the legislation to require that they should “not only wear safety helmets but also fasten them to the lower jaws”, the relevant provisions would have been clearly stipulated.

15.  The magistrate acquitted the three respondents.

D.  Grounds of Appeal

16.  The appellant raised two grounds of appeal in total.

(1)  The magistrate adopted a narrow / restrictive interpretation that a workman was wearing a helmet within the meaning of the Regulations as long as he was wearing a helmet. The magistrate erred in law when he wrongly held that the Regulations did not require the “proper fitting” of a proper helmet.

(2)  The magistrate mistakenly assumed that if the legislative intent of “wearing a proper safety helmet” included the proper use of a chin strap, the legislation would have so provided. The magistrate wrongly relied on other provisions of the Construction Sites (Safety) Regulations, Cap. 59I, to illustrate how those other provisions provided for safety at work. The examples quoted included regulations 5, 38, 38A, 38AA, 38B, 38C, 38D and 38I.

D.1.  Ground of Appeal (1)

17.  The appellant argued that the magistrate’s narrow / restrictive interpretation, by which as long as a workman was wearing a helmet, he was doing so within the meaning of the Regulations, defeated the purpose of safety in the case. The magistrate erred in law when he wrongly held that the Regulations did not require the “proper fitting” of a proper helmet.

18.  The appellant relied on the general principles of interpretation under section 19 of the Interpretation and General Clauses Ordinance (Cap. 1), Laws of Hong Kong, in support of its argument[4]:

“An Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit.”

19.  There is no definition of “suitable” in the Ordinance. According to the Shorter Oxford English Dictionary, Sixth Edition, “suitable” means “that is fitted for or appropriate to a purpose, occasion, person’s character, etc”.

20.  Although the law does not specify what constitutes a “proper safety helmet”, according to the opinion of the prosecution’s expert witness, the wearing of a suitable safety helmet requires the utilisation of the three major components in full: the shell, harness and chin strap. Therefore, a workman is not “wearing a suitable safety helmet” when he fails to fully utilise all the three components of the safety helmet.

21.  In support of his argument, the appellant cited Rodgers v George Blair & Co. Ltd.[5], a case concerning the “suitability” of “safety goggles” to protect a workman’s eyes. In that case, the Court of Appeal states that the barrier provided by the safety goggles must be effective to keep foreign bodies from entering his eyes[6] in all reasonably foreseeable circumstances, having regard to the nature of their work.

22.  In the above case, the Court of Appeal also held that having regard to the accident history, the safety goggles were not “suitable” to protect the workman’s eyes against minute particles of steel or carborundum or sparks, i.e. the workmen’s goggles were not suitable for the protection of their eyes[7].

23.  The appellant emphasized that in the present case, a suitable safety helmet must be effective to prevent the helmet from falling off during an impact or a fall from height. In order to effectively prevent a helmet from falling off, a suitable safety helmet must be worn with the chin strap properly fastened to the worker’s lower jaw.

24.  The appellant also cited Hawkins v Ebbutt[8] and R v Sodo[9] in support of his argument. Both cases concerned the requirement under section 10(6) of the Road Traffic Act 1972 of the United Kingdom to provide a suitable container to contain a specimen of blood or urine from an accused person. In Hawkins, the container given to the defendant to hold the blood specimen was not securely closed and it was held that the prosecution had failed to provide a suitable container. In other words, the Court of Appeal agreed that a suitable container must be one with a secure lid. In Sodo, the Court of Appeal held that a container which allowed alcohol to leak was not a suitable container.

25.  The appellant argued that, applying the above two cases to the present case, a suitable safety helmet must be securely fitted to the head, with the chin strap properly fastened to the workmen’s lower jaws.

D.2.  Ground of Appeal (2)

26.  The appellant submitted that the magistrate erred in holding that if the statutory meaning of “wearing a suitable safety helmet” included the proper use of a chin strap, the legislation would have so provided.

27.  To provide examples of how the magistrate relied on other provisions in Cap. 59I, including regulations 5, 38, 38A, 38AA, 38B, 38C, 38D and 38I, to ensure safety at work, the appellant made the following response.

28.  Regulation 5 deals with the construction, maintenance and inspection of a hoist. Regulation 38 governs the use of a hoist to raise or lower loads. These regulations deal with technical safety measures and explain how safety can be ensured in the relevant circumstances. Although the regulations are not immediately obvious, they are worded in specific terms to ensure the safe use of hoists.

29.  Regulations 38A, 38AA, 38B, 38C and 38D fall under the heading “Scaffolds, Working Platforms and Ladders, etc.”. When scaffolds, working platforms and ladders are used, workers are working at heights. This explains why the legislature considers it necessary to include more specific provisions / instructions.

30.  Regulation 38A sets out the duty of the contractor responsible for a construction site to ensure the safety of the workplace; for other contractors, regulation 38AA sets out their duty to ensure the safety of the workplace.

31.  Regulation 38B provides for prevention of fall. Regulation 38C provides for safety facilities for support. Regulation 38D relates to construction and maintenance of scaffolds and the like.

32.  The appellant pointed out that all the above regulations set out the details to ensure the safety of workers at work, especially when they are working at heights. However, none of the above regulations deals with the wearing of safety gears.

33.  Regulation 38C relates to safety facilities for support, but it is only a general requirement, similar to regulation 48(1)(b) and the safety helmet regulations in regulation 48(1A)(b).

34.  Regulation 38I relates to ensuring the wearing of safety belts (a type of safety equipment) by specifying, in addition to the wearing of safety belts, that they must be attached to a secure anchorage.

35.  However, regulation 38I also does not prescribe how a safety belt is to be worn, but only adds a second requirement that the safety belt must be attached to a secure anchorage. In fact, the provision does not specify how the safety belt is to be worn, in the same way as regulations 48(1)(b) and 48(1A)(b).

36.  The appellant submitted that on the one hand, the highly technical nature of the hoist and the high-risk nature of the scaffolding and laddering work necessitated the incorporation of more specific requirements / instructions into the Regulations; on the other hand, the wearing of a “suitable” safety helmet (which obviously needs to be securely fastened) should not have necessitated any more specific requirements / instructions.

37.  The appellant submitted that common sense dictates that for a safety helmet to be a “suitable” safety helmet, it must be fastened with a chin strap, otherwise the helmet will be of little or no use in protecting the workman. In view of the use of the word “ensure” in regulations 48(1)(b) and 48(1A)(b), there is an implied duty on the contractor to ensure that a safety helmet is “suitable” only if the helmet’s chin strap is fastened to the workman’s lower jaw.

38.  The appellant pointed out that the offence under regulation 38I is directed against a person who is provided with a safety belt but fails to wear it or fails to attach it to a secure anchorage, whereas the offences under regulations 48(1)(b) and 48(1A)(b) are directed against a contractor who fails to ensure that a worker wears a suitable safety helmet. Since regulations 38I and 48(1)(b)/48(1A)(b) involve different types of safety equipment and target different categories of people, it is difficult to make a direct comparison between them.

39.  The appellant responded to the case cited by the respondent, HKSAR v Chan Shum Kee Sam Lee Construction Co Ltd & Another[10]. In that case, on appeal, the judge agreed with the appellant’s submission that the legislation did not require a safety helmet to be fitted with a chin strap, but that the magistrate had erred in considering whether the safety helmet was fitted with a strap.

40.  The appellant submitted that at that time, the guidelines on safety helmets in use issued by the Labour Department was the second edition dated 2004, which showed that there were two different types of safety helmets, one with a strap and one without. However, in 2018 (i.e. prior to the date on which the summonses in this case were issued), a new guideline on safety helmets had been issued by the Labour Department, namely the (third) revised edition in which the requirement of wearing a suitable safety helmet with a chin strap had been added. Hence, the above case is not helpful to the present case.

41.  Regarding the Road Traffic (Safety Equipment) Regulations cited by the respondent, which explicitly provide that a motorcyclist or a motorcycle passenger must wear a protective helmet securely fastened to his head, the appellant submitted that the relevant legislation protected the motorist himself or his passenger, and that it was not comparable to the regulations in question which related to the protection of employees by their employers.

E.  Respondent’s Responses

42.  In respect of the two grounds of appeal and the appellant’s skeleton submission, Mr. Lawrence Hui for the respondent gave the following list of points in reply:

a.  It is not a legal requirement to fasten the chin strap of a safety helmet to one’s lower jaw;

b.  no offence shall violate the principle of legal certainty;

c.  the language of the provision does not support the appellant’s approach to interpretation; and

d.  the “Guidance Notes on the Selection, Use and Maintenance of Safety Helmets” (Exhibit P19) and the prosecution’s expert evidence did not contribute to the interpretation of the legislation.

43.  In reply, the respondent submitted that the magistrate had not erred in his decision on the question of law in this case.

E1.  Fastening of the Chin Strap is Not a Legal Requirement

44.  The respondent’s submissions suggested that the interpretation of the Regulations in question was the core issue in this appeal.

45.  The requirement to wear suitable safety helmets has been provided for in the Regulation by the legislature since as early as 1978, and the requirement in the wording of the Regulation is confined to the wearing of safety helmets only; there has never been any requirement for the fastening of the chin strap to the lower jaw. The Commissioner for Labour did not publish a notice in the Gazette on the requirement to fasten the chin strap. Therefore, the requirement to fasten the chin strap should not have any legal effect.

46.  The respondent submitted that fastening the chin strap was only the best practice for wearing a safety helmet. The best practice is, nevertheless, not a statutory requirement and is thus not a yardstick that should be adopted by the court. The respondent cited the case of HKSAR v Television Broadcasts Limited[11]in support of its argument[12].

47.  According to the respondent, as shown in the following documents, fastening the chin strap of the helmet is only the best practice advocated by the Government in recent years and is not a policy with legal effect:

a.  Exhibit P19 is the third edition of the Guidance Notes in question, in which the Labour Department has also mentioned: “This edition has been amended to include the requirements of wearing suitable safety helmets with chin straps.” The second edition of the Guidance Notes (published in 2004) differs from Exhibit P19 in three significant ways:

i.  According to the second edition of the Guidance Notes, a safety helmet has only two main parts—the shell and the harness, but does not include a chin strap (page 6);

ii.  According to the second edition of the Guidance Notes, chin straps are only defined as accessories (page 10); and

iii.  The second edition of the Guidance Notes only states that chin straps should be used by workers who work in high winds and who need to repeatedly bend or look up (page 16), but does not require workers to fasten their chin straps in other situations.

b.  Professor Fung Wing Hong, a researcher in construction safety management, together with three other academics, published a paper entitled “A feasibility study of introducing chin straps of safety helmets as a statutory requirement in Hong Kong construction industry”[13]on the journal, Safety Science in 2014. They said:

i.  “There are no statutory requirements in Hong Kong relating to the use of chin straps on safety helmets” (page 70, part 1)

The gist: Legislation in Hong Kong does not provide for any requirement relating to the use of chin straps on safety helmets;

ii.  “It is a surprising and ironic finding that body parts caused most fatalities but did not have statutory requirements concerning or describing the adoption of safety helmets. OSHC only put some standards that can be used as references rather than approved specifications for employers to procure for their employees” (page 71, part 1.4)

The gist: There is no statutory standard for the specification of safety helmets in legislation of Hong Kong. The Occupational Safety and Health Council only provides some relevant international standards for reference;

iii   “However, as there is no statutory requirement concerning the compliance to standards of safety helmets, the safety helmets thus being sold in Hong Kong usually does not contain chin straps even in the OSHC’s product directory” (OSHC, 2008) (page 73, part 1.10)

The gist: In the Guidance Notes for Safety Helmet Suppliers provided by OSHC in 2008, many safety helmets sold by specified suppliers do not come with a chin strap; and

iv.  “revealed by Question 3.6 that about 79.4% of these interviewees’ employers did not provide chin straps” (page 77, part 5.6)

The gist: 79.4% of the workmen interviewed were provided by their employers with safety helmets without a chin strap.

c.  In the Policy Agenda of the 2016 Policy Address, the Government stated that “to further protect the safety of workmen when working at heights”, the Government would “require workers to use safety helmets with chin straps”.

The respondent pointed out that the policy was intended to provide a further safeguard; in other words, prior to the introduction of the policy, there was no legal requirement to “use a safety helmet with a chin strap”. Moreover, the policy was only directed at work at heights, which was different from the provision applicable to work at other construction sites, and therefore the policy was not an enforcement measure against the provision;

d.  Regarding the above initiative in the 2016 Policy Address, the Secretary for Labour and Welfare advised at the meeting of the Legislative Council Panel on Manpower on 19 January 2016 that Labour Department would continue to promote the wearing of safety helmets with chin straps when working at heights among contractors and workmen, and would explore ways to encourage the proper use of such helmets by workers.

The respondent contended that the Labour and Welfare Bureau had not linked this measure to the enforcement of the provision, but instead used the terms “promote”, “explore” and “encourage”, which showed that the measure did not have legal effect; and

e.  At the Council meeting of 2 May 2018, the Secretary for Labour and Welfare stated that the Labour Department would adopt a series of “new measures” to reduce work-related injuries, including the promotion of the requirement for workmen to wear safety helmets with chin straps.

48.  The respondent submitted that according to the British Standard for Safety Helmets BS EN 397: 2012+A1:2012 (i.e. the European Union Standard EN 397 recognized in Exhibit P19), a safety helmet’s chin strap is defined as an accessory only. This means that a compliant safety helmet only needs to have fixing points for fastening the chin strap and does not necessarily need to have a chin strap attached. Therefore, to wear a suitable safety helmet, it is not necessary to fasten the chin strap.

49.  The respondent argued that the requirement for workmen to fasten their chin straps when wearing safety helmets was a further measure introduced several decades after the enactment of the provision and not a requirement of the provision itself. The requirements of the provision should not be changed arbitrarily as a result of changes in policy or the evolution of safety helmets. In any event, the court should not interpret the provision by reference to the information published after the commencement of the provision.

50.  In view of the above, the respondent invited the court to rule that the requirement of the provision did not include the fastening of chin straps.

E.2  The principle of legal certainty cannot be violated in the case of criminal offences

51.  The respondent submitted that the principle of “legal certainty”, as pointed out by the Court of Final Appeal in Winnie Lo v. HKSAR[14], required that a criminal offence must have a sufficiently clearly formulated core to enable a person, of his own volition or with advice, to regulate his conduct so as to avoid liability for that offence[15].

52.  The authors of Bennion, Bailey and Norbury on Statutory Interpretation (8^th edition, Lexis Nexis 2020) also point out that people can only be penalized under clear law and that a court should take this principle into account when interpreting the law[16].

53.  The respondent submitted that for the purposes of the provisions of the Regulation, the interpretation of “wearing” was at the heart of the charge and therefore had to be clearly defined. Applying the appellant’s logic, the term “wearing” should be interpreted by an expert to analyse what the main components of the safety helmet were in common use at the time; and the respondent had to ensure that the workman had used all the main components of the safety helmet before he could know whether the provision had been contravened. If that were the case, the offence under the provision would clearly have been unconstitutional for lack of legal certainty. Moreover, the expert agreed that this was a question of law.

54.  The Court of Final Appeal in Winnie Lo held that the court should not judicially extend the boundaries of criminal liability when clarifying the existing law[17]. It would have been a clear extension of the boundaries of the charge if the court were to adopt the appellant’s interpretation of the provision that the respondent should ensure that a worker was fitted with a safety helmet in the safest possible manner and that all of its major components were used to the fullest extent.

E.3  The language of the provision does not support the appellant’s approach to interpretation

55.  The respondent submitted that the summonses in this case are not against the three respondents for failing to ensure that workmen wear safety helmets properly, but against them for failing to ensure that workmen wear suitable safety helmets. The appellant also did not dispute at the trial that the safety helmets in question were suitable.

56.  According to the Shorter Oxford English Dictionary, Sixth Edition, the word “wear” means only to put something on, i.e. it does not include any action to fasten anything:

“Carry or bear on (a part of) the body for protection, warmth, decoration, etc.; be dressed in; have on.”

57.  The respondent pointed out that the appellant invoked section 19 of the Interpretation and General Clauses Ordinance in an attempt to persuade the court to give a wider interpretation to the provision, and then to rule that the provision also required workmen to fully utilize all major components, including the chin strap, when wearing a safety helmet.

58.  The respondent cited China Field Ltd v. Appeal Tribunal (Buildings) (No 2)[18], in which Lord Millett emphasized that in interpreting a statutory provision so as to give effect to the legislative intent, the courts cannot give an interpretation of the statutory provision which is not supported by the language used, however expedient that interpretation may be in terms of the consequences it entails[19].

59.  The respondent submitted that the appellant’s interpretation of the provision would arbitrarily expand the meaning of “wearing a suitable safety helmet” to “wearing a suitable safety helmet by proper and full utilization of all of its major components”. The respondent took the view that such an interpretation could not be supported by the language of the provision.

60.  In respect of the three English cases cited by the appellant, the respondent pointed out that Rodgers v. George Blair & Co. Ltd.[20] discussed the appropriateness of the barrier of a pair of goggles in terms of its effectiveness in preventing a foreign body from getting into the eyes of a workman in his working environment[21]. R v. Sodo[22] dealt with the conformity of a container containing a blood specimen, i.e. whether it would allow the leakage of alcohol[23].

61.  The respondent emphasized that the issue in this case was not whether the construction of the subject safety helmet itself was up to specification. The magistrate had already pointed out at the review hearing that these cases were concerned with structural defects only and had nothing to do with any human error, and therefore could not support the appellant’s argument.

62.  The respondent pointed out that in Hawkins v. Ebbutt[24], the defendant’s blood samples could not be analyzed because they had coagulated[25]. The court considered that the coagulation of the sample was related to the condition of the container—i.e. it was not covered or did not have enough anticoagulant[26]. Accordingly, the court did not accept that the container was in proper condition at the time the police handed it over to the defendant.

63.  The respondent submitted that it was worth noting that the statutory provision involved in Hawkins required the police to provide the accused with a suitable container. The suitability of the container therefore depended on the state of the container before it was given to the accused[27]. In the present case, the appropriateness of the safety helmet should likewise depend on the condition of the helmet before it was worn by the workman. The word “suitable” has nothing to do with how the workman is wearing the chin strap.

64.  Moreover, the fact that the container in Hawkins was not securely closed would clearly have prevented it from serving its purpose of preserving blood samples. On the other hand, a safety helmet without a fastened chin strap can still provide adequate protection to the user by protecting the head with the hat shell and by securing the helmet to the head with the harness. Therefore, the appellant could not compare the container in Hawkins to a safety helmet worn without a fastened chin strap.

65.  The respondent argued that if the legislative intent of the provision was to require a workman to fasten a chin strap when wearing a safety helmet, the provision would certainly have been so worded.

66.  In his ruling at the review hearing, the magistrate also cited regulations 5, 38, 38A, 38AA, 38B, 38C, 38D and 38I of the Regulations as examples to illustrate that if the Regulations require a contractor to take any measures or to ensure that workmen take any measures, it will be clearly stated. The respondent agreed and adopted the magistrate’s analysis.

67.  The respondent was of the view that, among the many examples, regulation 38I of the Regulations and regulation 3 of the Road Traffic (Safety Equipment) Regulations (Cap. 374F) are of the highest referential value.

68.  Regulation 38I of the Regulations reads as follows:

“38I. Duty to wear safety belt

Every person working on a construction site who has been provided with a safety belt shall wear it and keep it attached to a secure anchorage whenever the use of the belt is necessary for his own or any other person’s safety.” (Emphasis added)

69.  It can be seen that since the legislative intent is to require a workman to wear a safety belt attached to an anchorage, the wording of the provision makes it clear that the requirement to wear a safety belt is not expressed simply by the word “wear”.

70.  Regulation 3 of the Road Traffic (Safety Equipment) Regulations (Cap. 374F) reads as follows:-

“3. Drivers and passengers of motor cycles required to wear protective helmets

(1) Subject to regulation 10, no person shall drive a motor cycle, or ride as a passenger on a motor cycle (other than as a passenger seated in a side car attached thereto), unless he is wearing an approved protective helmet which is securely fastened to his head.

(2) No person shall drive a motor cycle when there is a passenger (other than a passenger seated in a side car attached thereto) riding on it who is not wearing an approved protective helmet securely fastened to his head, unless such passenger has been exempted from compliance with subregulation (1) under regulation 10.”

(Emphasis added)

71.  The requirement to put on / wear a helmet and the requirement to fasten it are entirely separate in the above provision. It can be seen that the requirement of the provision in question does not include fastening the chin strap of the safety helmet.

72.  The appellant submitted that the legislature would only make more specific / detailed requirements and directions on safety measures for highly technical work (e.g. hoist, scaffolding) and high risk work (e.g. work at heights). Provisions such as regulation 38I of the Regulation are more specific than those relating to the wearing of safety helmets as they relate to high-risk work at heights.

73.  The respondent responded that the appellant’s argument above was irrational. One of the purposes of wearing safety helmets is to minimize the risk of head injuries when a worker falls from a height. It is also stated in the introduction of Exhibit P19 that many workmen have sustained head injuries at work and even died as a result. The wearing of safety helmets is also a safety measure for high-risk work. Workmen are also required to wear safety helmets when carrying out highly skilled work on construction sites. It appears that the appellant arbitrarily distinguished this provision from others only for the purpose of successful prosecution.

74.  Furthermore, the appellant did not provide any examples of safety legislation that did not involve highly technical or high-risk work being drafted in less clear or specific terms. The manner in which safety legislation is drafted does not differ because the nature of the work is highly technical / high risk.

75.  The respondent submitted that the provision must be interpreted in such a way as to respect the word “to wear” of the provision itself, and that no other meaning should be added to it that is not clearly specified.

E.4.  “Guidance Notes on the Selection, Use and Maintenance of Safety Helmets” (Exhibit P19) and the Prosecution’s expert evidence did not assist in the interpretation of the legislation

76.  The appellant relied on the expert evidence of the 7^th prosecution witness (PW7) on a number of occasions at the trial and the review hearings, and also relied on the safety rules of Exhibit P19 on a number of times at the trial to allege that the respondent had breached the provision.

77.  However, the evidence of exhibits P19 and PW7 only dealt with the best practice in the wearing of a safety helmet, which had no legal effect of its own. Further, an even better practice would be to check or replace safety helmets on a daily basis, which is clearly not required by the legislation, so that the desirability of the measure is not directly related to the requirement of the legislation.

78.  The requirements set out in the provisions in question in the respondent’s submissions do not vary with the existing best practice. In Bennion, the authors point out that legislation is a rigorous process and therefore its contents cannot be easily changed by other factors[28].

79.  Furthermore, expert opinion on the best practice in occupational safety and health is not relevant to the interpretation of the legislation. In Lord Energy Ltd. v. Chen & Anor.[29], Rogers JA stated that an expert witness could not give evidence on a question of law[30].

80.  The respondent emphasized that PW7, when being cross-examined, accepted that his views on the meaning of “wearing a suitable safety helmet”, the need to fasten the chin strap and the like were questions of law and were not within the scope of his expertise.

81.  It follows that the appellant should not have interpreted the provision in the skeleton submission based on what the expert considered to be the best practice. The appellant’s statement that “the purpose of the Ordinance is, as the expert has pointed out” is in fact a highly inappropriate wrapping of the legal intent in the expert evidence, which is not admissible.

82.  The respondent submitted that it was also unnecessary for the respondent to challenge PW7’s evidence point by point on this issue. There was no basis for the appellant to rely on PW7’s evidence that “the helmet consists of three main components ...” in interpreting that provision.

83.  As to whether the court should interpret the provision with reference to exhibit P19, the respondent cited Chong Wing Fai Winfield v. Cheung Kwok Kwan[31], in which Johnson Lam JA (as he then was) stated that the court should not rely on the Government’s Guidance Note in interpreting the legislation:

“40. As a matter of law, neither the Consultation Paper nor the Guidance Note can be relied upon to construe the meaning of ss.24 and 28 of the LCO.”)

(Emphasis added)

84.  In International Trader Ltd v. Appeal Tribunal (Buildings)[32], the court refused to use the information published after the commencement of the provision to interpret it:

“102. Here Mr. Ismail is inviting me to look at material and events (not just Hansard) which arose after the relevant provisions of the BO and TPO were enacted. He asks me to construe those enacted provisions by reference to post-enactment materials and events.

103. But I have been shown no authority to the effect that I am entitled to infer anything about the meaning of statutes from post-enactment materials or events.

…

105. The whole process strikes me as a wrong and illogical approach to reading a statute.”

(Emphasis added)

85.  As the Commissioner for Labour did not publish a notice in the Gazette in respect of Exhibit P19, Exhibit P19 did not fall within the code of practice under section 7A of the Factories and Industrial Undertakings Ordinance (Cap. 59) and therefore had no legal effect. The prosecution accepted this point at the review hearing.

86.  The respondent submitted that Exhibit P19 and the prosecution’s expert evidence did not assist in the interpretation of the legislation, and the court should not take into account Exhibit P19 and PW7’s expert evidence in interpreting the provision.

87.  The respondent wanted to cite Chan Shum Kee Sam Lee Construction Company Limited and another to further illustrate that the statutory requirement did not include the fastening of a chin strap. In that case, although the magistrate acquitted the appellant of the summons of “failure to wear a suitable safety helmet”, he refused the appellant’s application for costs, one of the reasons being that the safety helmet in question was not fitted with a chin strap. The appellant argued that the magistrate should not have taken this into account because the legislation does not require safety helmets to be fitted with a chin strap. On this issue, Deputy Judge Anthony Kwok of the High Court also agreed with the appellant’s submissions:

“36. On the second ground of appeal, Mr. Poon submitted firstly that the appellant argued that the magistrate had erred in considering whether the safety helmet was fitted with a chin strap or not. At the relevant time, the legislation did not require safety helmets to be fitted with chin straps. The evidence also showed that there were two different types of safety helmets, one white with a chin strap and the other orange without a chin strap. The use of either type of safety helmet by the workmen was in compliance with the specifications. Therefore, it cannot be said that the first witness for the defence should have known clearly that his safety helmet needed to come with a chin strap, or that he should have asked for a replacement when he realized that his helmet did not come with a chin strap or that the chin straps had fallen off. The magistrate should not have used this as a ground for rejecting the defence’s application for costs.

37. On the application for leave to appeal from the third set of summonses, Mr. Kwan, Senior Public Prosecutor did not respond positively to the second ground of appeal, i.e. whether the safety helmet had a chin strap. I also agree with Mr. Poon’s submissions on this ground of appeal, which should not be taken into account by the magistrate in considering the costs.”

(Emphasis added)

88.  The respondent submitted that since the legislation did not require safety helmets to be fitted with a chin strap, it was impossible to make it a mandatory requirement for workmen to fasten their chin straps when wearing safety helmets. Therefore, the appellant’s interpretation of the provision must be wrong.

F.  My Consideration

89.  Firstly, I agree with the respondent’s submission that criminal offences should not violate the principle of legal certainty. In interpreting a statutory provision to give effect to the legislative intent, the court cannot give a statutory provision an interpretation which its wording does not support, no matter how desirable the consequences of that interpretation might be.

90.  The question for consideration is, what is the interpretation of the provision in question? Should the magistrate adopt a narrow or restrictive interpretation?

91.  The wording of the Regulations is that the contractor shall “take all reasonable steps to ensure that no [workman] remains on the site unless he is wearing a suitable safety helmet”. The Ordinance does not say that it shall “ensure that no [workman] remains on the site unless he is ‘properly’ wearing a suitable safety helmet”.

92.  Having considered the submissions of the appellant and the respondent, I agree with the appellant’s submitted arguments. Having regard to the fact that the intent of the legislation is to protect the safety of workmen, the wearing of a safety helmet without fastening the chin strap will not enable the safety helmet to fulfil its protective function.

93.  If the respondent’s argument were adopted, the contractor would only have been required to provide proper safety helmets. As long as the workmen wore helmets (in whatever manners), the contractor would have fulfilled its responsibility. I do not accept this view. I consider that the wording of the Regulations in question contains / implies that the contractor must take all reasonable steps to ensure that the workmen are properly fitted with suitable helmets.

94.  What is the appropriate way to wear a safety helmet? In my opinion, the Guidance Notes issued by the Occupational Safety and Health Council of the Labour Department are crucial. I do not agree with the respondent that the Guidance Notes cannot be taken into account when considering the relevant legislation. It should be noted that the Guidance Notes on industrial safety issued by the Labour Department serve the purpose of educating contractors, which is very different from Chong Wing Fai Winfield quoted by the respondent in relation to the Guideline on Questions on District Council Election.

95.  The second edition of the Guidance Notes issued in 2004 did cover the points raised by the respondent. At that time, a chin strap was only defined as an accessory and should only be used by workmen who work in high winds and who have to repeatedly bend or look up.

96.  The paper written by Professor Fung and the three other academics was written in 2014. The Guidance Notes in force at that time were still in their second edition, and I understand the issues raised by Professor Fung and others.

97.  However, in 2018, the Labour Department issued new Guidance Notes on the use of safety helmets. Whilst the chin strap is still referred to as an accessory, it is clear that the chin strap serves an important purpose. Common sense also dictates that a safety helmet may fall off and fail to fulfil its purpose if the chin strap is not fastened.

98.  As time progresses, it is only natural that newer and safer products and/or methods of use will be developed as a result of ongoing research and accumulated experience. The Regulations do not specify what constitutes a “suitable safety helmet” because obviously the requirements for “suitable” safety helmets vary from time to time and there is thus no further explanation as to what constitutes a suitable safety helmet. However, it is clear that contractors should be required to ensure that workmen are properly fitted with helmets which are considered to be “suitable” at the time.

99.  The third edition of the new Guidance Notes issued by the Labour Department in 2018 (Exhibit P19) was clearly motivated by the importance of knowing how a safety helmet should be properly worn. The respondent was also aware of Exhibit P19.

100.  I do not agree that only workmen working at heights in construction sites are required to fasten their chin straps.

101.  I do not agree with the magistrate’s comparison of other provisions in Cap. 59I with regulation 48 to reach the conclusion that the provision does not expressly state that the safety helmet should be properly worn and therefore the contractor is not required to ensure that workmen are to be properly fitted with safety helmets. I agree with the appellant’s submission that the other provisions are different in nature from regulation 48.

102.  The example of the Road Traffic Ordinance quoted by the respondent is also very different from the duty imposed on contractors pursuant to regulation 48.

103.  As regards Chan Shum Kee cited by the respondent, I fully agree with the arguments of the appellant’s submissions. The case occurred before the Revised (Third) Edition, which is not helpful to the present case.

104.  In my view, “wearing a suitable safety helmet” includes wearing it properly, otherwise it will not be able to provide protection at all. But what is meant by wearing it “properly”? Obviously, before the new Guidance Notes were issued in 2018, only workmen working in high winds, or constantly bending over and looking up and so on were required to fasten their chin straps. However, after 2018, all workmen on construction sites are required to fasten their chin straps.

105.  I agree that the magistrate did adopt a narrow or restrictive interpretation.

G.  Conclusion

106.  For the above reasons, on the following legal issues:

“Under regulation 48(l)(b) or 48(1A)(b) of the Construction Sites (Safety) Regulations (Cap. 59I), is the contractor responsible for a construction site, or the contractor who has direct control over the construction work, required to ensure that workmen are fitted with safety helmets and that the chin straps of the safety helmets are fastened to their lower jaws?”

The answer is “Yes”.

Translated by the Court Language Section of the Judiciary and vetted by Ms Jenny Chung, Solicitor.