HKSAR v. MODERN CONCRETE DRILL CUT CO LTD

HCMA 362/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 362 OF 2016

(ON APPEAL FROM ESS NO 8826 AND 8827 OF 2013)

______________

______________

___________________

J U D G M E N T

___________________

1.  Gammon Construction Limited (D1) and Nishimatsu Construction Company Limited (D2) in joint venture as GNJV subcontracted the concrete-breaking work of a wall in the Kennedy Town Praya site (“the site”) to the Appellant (D3).

2.  After investigation of an accident (“the accident”) that took place in the site on 14 September 2013, the following six summonses were issued against the three parties under the Factories and Industrial Undertakings Ordinance, Cap 59 (the “Ordinance”), where the Appellant was liable as primary proprietor and D1 and D2 were proprietors vicariously liable under s.13 of the Ordinance:

(1) Against D1, D2 and the Appellant for failing to provide and maintain a system of work that was, so far as reasonably practicable, safe and without risk to health, contrary to ss.6A(1), 6A(2)(a) and 6A(3)  of the Ordinance (“Summonses A, C and E” respectively);

(2) Against D1, D2 and the Appellant for failing to provide such information, instruction, training and supervision as was necessary to ensure the health and safety, contrary to ss.6A(1), 6A(2)(c) and 6A(3) of the Ordinance (“Summonses B, D and F” respectively);

3.  After trial before a Deputy Magistrate (the “Magistrate”), D1, D2 and the Appellant were convicted of Summonses A, C, and E respectively (concerning the failure to provide and maintain a safe system of work).

4.  Summonses B, D and F (concerning the failure to provide information, instruction, etc.) were dismissed and costs on the acquittals of these three summonses were refused.

5.  The Appellant now appeals against (i) the conviction of Summons E and (ii) the Magistrate’s dismissal of the Appellant’s costs application on Summons F.

BACKGROUND

6.  The accident occurred in a tunnel of the site. One of the walls there needed to be trimmed down. The Appellant was subcontracted by GNJV to arrange its own machine and manpower to do the job. The work was expected to be performed by a demolition machine (“the robot”).

7.  The robot was like an excavator with an arm (the jib) and a breaker at its tip to break the wall by vibration. It moved on crawler tracks. It was electrically powered and remote-controlled. The robot was manufactured by a company known as “Brokk”, which was said to be the world’s leading supplier of remote-controlled demolition robots.

8.  On the morning of 14 September 2012, three employees of the Appellant, namely PW1, PW2 and PW3, arrived at the site and began to work. It was the first day of work in the site for all the three workers. PW3 acted as a foreman and supervisor.  PW2 was the operator of the robot and PW1 assisted PW2 in his work.

9.  The robot was placed facing the opposite direction of the wall which needed to be trimmed.  Before the trimming of the wall commenced, PW2 had to start the robot and to turn it around in order to move it closer to the wall. It was a remote-controlled robot and PW2, in controlling it, stood at a distance from it. When PW2 tried to turn the robot around, it suddenly toppled and fell on its side.  It fell in the direction of PW2 and the jib hit PW2’s body causing him serious injuries.

10.  All the factual witnesses (except PW2 in his oral evidence) gave evidence to the effect that the condition of the site was satisfactory and was suitable for the operation of the robot.  Mr Lam Shun‑wong (“Mr Lam”), Occupational Safety Officer of the Labour Department, conducted an investigation visit on the day of accident. The robot was later checked and found to be functioning in a normal manner.

THE TRIAL

11.  It was contended by the Prosecution that the Appellant failed to provide and maintain a safe system of work for operation of the robot and in particular, no risk assessment for the operation of robot was conducted and potential hazards were not identified.

12.  The Prosecution called four witnesses:

(1) PW1: Mr Lam Wai-hung, a co-worker of the injured person;

(2) PW2: Mr Hung Kwan-lai, the person injured in the accident;

(3) PW3: Mr Chan Ying-cheung, the foreman; and

(4) PW4: Mr Choi Kai-yip, an expert of the Labour Department.

13.  The following statements were admitted under s.65B of the Criminal Procedure Ordinance, Cap 221:

(1) statement of Mr Lam Shun-wong, occupational safety officer of the Labour Department;

(2) statement of Mr Malcolm Dennis O’Neill, contract administration manager of the MTR;

(3) statement of Mr Lam Siu-wai, foreman of the Appellant; and

(4) statement of Mr Hui Hin-kwok, engineer of D1.

14.  Photographs of the scene and the robot are not in dispute.  The photographs show that the tip of the jib was at a level lower than the tracks of the robot. The Appellant relied heavily on the photographs to suggest that PW1 used an improper method to turn the robot around. The photographs appear to support the defence case.

15.  D1 and D2 called Brokk’s trainer, Mr Richard Yip, to give evidence saying that he gave a one-day training to PW1-3 for the operation of the robot. They were taught, inter alia, where the risk zone was and where they should stand during the operation of the robot.

16.  The Appellant did not call any witness.

17.  PW1 testified that at the time of work, his attention was first on the cable he was handling. When he looked up from it, the robot was in the course of falling on its side.  He was about 2 to 2.5 metres from the robot.  PW1 did not see anything untoward about the way PW2 operated the robot.

18.  PW2 testified that when he tried to move the robot with a view to turning it around to opposite direction with the remote control, the robot fell on his body. PW2 also asserted that when the robot fell towards him, he could have backed out of its way.  However, a metal receptacle was behind him and his route of escape was blocked.  The Magistrate remarked that this served to highlight the danger of the working environment. PW2 also confirmed that before the robot toppled, the distance between him and the robot was about 1 to 2 metres.  He was not supervised during the operation of the robot and his supervisor told him nothing about the danger zone on that day.  PW2 denied using the improper method of “dancing turn” when he tried to turn the robot.

19.  PW3 was the foreman and team leader. He confirmed that it was the first day the three of them worked at the site.  He was responsible for the supervision and was supposed to make the decision. At the time of accident, he had left PW1 and PW2 in order to find some boards to cover a cable.  PW3 said that he had carried out a risk assessment when he arrived at the scene on the day of accident. He had reminded PW1 and PW2 to stand behind the robot during the operation of the robot.

20.  PW4 was accepted by the court (and the three defendants) as expert to give evidence on health and occupational safety.  He gave evidence on the following issues:

(1) Why a risk assessment was needed in the present case;

(2) What would a proper risk assessment be in the circumstances;

(3) The absence of a proper risk assessment in the present case;

(4) Why the assessment carried out by PW3 was insufficient;

(5) Safety precautions in relation to the danger; and

(6) The issues in relation to information provided to workers, training and supervision.

21.  As summarized by the Prosecution in its closing submissions, it was contended by the Prosecution that:

(1) According to PW3’s evidence, there was no risk assessment specific for the demolition work on the site. What PW3 labelled as risk assessment was simply (1) filling in an inspection form before starting the robot; and (2) filling in some kind of government form.  This could not be considered as risk assessment even without the need for assistance from PW4’s evidence;

(2) PW2 was injured when PW3 left PW1 and PW2 right after telling them to start operating the robot, and PW3 did not bother to supervise the work despite it being the first occasion working on the site. PW3 should have supervised the work for some time; and

(3) The evidence of PW1 and PW2 suggested that they were not told what the area of the risk zone was in this case.

22.  On the other hand, the Defence argued that the system of work adopted by the Appellant was safe because, inter alia, a safe machine and extensive training had been provided to the three workers.  PW1-3 were qualified and experienced operators of the robot. They knew where the risk zone was. PW2 knew he should not stand at the risk zone. PW2 agreed that PW3 told him to stand behind the robot. It was PW2’s casual departure to stand within the risk zone. PW3 had already carried out an assessment at the site. The job was only a basic and routine operation.

23.  It was also the defence case that PW2 had used an improper method called “dancing turn” to turn the robot by pressing the tip of the arm against the ground so that the tracks of the robot were raised off the ground.  The tracks were therefore tilted upward in the air.  It was suggested that this method was much easier and quicker to turn the robot around.  The position of breaker of the jib being lower than the tracks of the robot, as shown in the photographs of the site and the robot, was proof of the adoption of the improper method. This method of turning the robot was prohibited and was the cause of the toppling of the robot. PW2’s conduct was a casual departure from a safe system of work.

24.  The Defence relied on the confirmation of the counsel on fiat that the Prosecution was “not relying on the expert”. The opinion evidence of the expert was therefore inadmissible.

25.  The Defence submitted that the operation involved was a “simple, basic and routine operation”.  Without expert’s evidence, the Prosecution could not prove that there was no safe system of work merely because of the lack of a risk assessment by an independent safety officer.

REASONS FOR VERDICT

26.  The Magistrate found that PW1 and PW2 were credible witnesses. However, PW3 was not a credible witness.

27.  The Magistrate analyzed the suggestion that PW2 casually departed from a safe system of work by making a shortcut by way of “dancing turn” in moving the robot. The Magistrate concluded that PW2 did not do the “dancing turn”.

28.  The Magistrate noted that the Defence heavily criticized PW4’s evidence as “highly problematic” being in breach of the rules for expert evidence to be received. The Magistrate said he needed not delve into the legal rules and legal arguments on the subject of expert evidence as it was a purely academic matter.  The Magistrate said Mr Choi, the expert, did not profess to give opinion on the cause of toppling of the robot or the way it operated. “He may not be an expert in a strict sense and any objection to his report on the basis of those expert evidence rules…is misplaced.”

29.  The Magistrate said “I take into account the recommendation of the expert, Mr Choi, but I reach my conclusion independently.”  Apart from the aspect of “risk assessment” in his report and testimony, the Magistrate found that the other matters referred to by the expert too trivial and he left them out of his consideration.

30.  The Magistrate found that, in sum, a heavy and powerful mobile robot operating on a construction site in a tunnel is “a recipe for accident”.  Yet, the Appellant just sent a robot and three workers there with the false confidence that the robot could never do mischief and the workers could fend for themselves.  An accident, mixed with the ingredients of the recipe, did occur and one of the workers was injured as a result.  The Magistrate found that the operation was not simple and should not be left to the workers to fend for themselves.

31.  The Magistrate came to the view that there should have been, at least, a risk assessment, on ad hoc basis, to be carried out by an independent person experienced in health and occupational safety before the workers were allowed to work on the site. The Magistrate found such risk assessment, on ad hoc basis, was reasonably practicable.

32.  Primarily for this reason, the Magistrate found there was no adequate safe system of work in place and therefore found the Appellant guilty of Summons E.

33.  On the acquittal of Summons F, the Magistrate said, for the matters referring to s.6A(2)(c), he would “leave them out” for two reasons.   First, these matters could be part and parcel of the safe system of work which had been dealt with in the same way as in s.6A(2)(a).  Secondly, it was his view that s.6A(2)(c) did not apply to situation where workers just “carried out familiar working procedure”.

GROUNDS OF APPEAL

34.  The grounds of appeal can be summarized as follows:

(1) The Magistrate erred in ruling that there was no casual (or deliberate) departure on the part of PW2 (“Ground 1”); and

(2) The Magistrate erred in ruling that a risk assessment had to be conducted by an independent person experienced in health and occupational safety, and in doing so wrongly adopted the opinion of the Prosecution expert (“Ground 2”).

35.  The ground of appeal in respect of the no-costs order complains that the Magistrate erred in saying that there was no disadvantage to the defendants in charging them with a separate charge under s.6A(2)(c) of the Ordinance.

DISCUSSION

Appeal against Conviction

Ground 1 (Casual departure of PW2)

36.  Mr Chau raises various complaints about the ways the Magistrate evaluated the evidence of PW1-3, in particular, the Magistrate’s findings of the credibility of the witnesses.  He submits that the Magistrate misapprehended evidence of the Prosecution witnesses, in particular, failing to consider the evidence of PW2 that he agreed PW3 had briefed him he should stand behind the robot on the day in question. Mr Chau submits that there should be a doubt as to whether PW2 had performed the “dancing turn” or there was otherwise a casual or deliberate departure on the part of PW2. 

37.  For the reasons that I will give in relation to Ground 2, I do not think it is necessary to discuss in details about the complaints of Mr Chau in this ground.  Suffice it for me to say that an appellate court will only depart from a magistrate’s finding of fact or determination of a witness’ credibility if it is satisfied that it is plainly wrong.

38.  I do not find that there is sufficient basis of the complaints of Mr Chau that the Magistrate misapprehended the evidence in evaluating the credibility of various witnesses.

39.  I find that the Magistrate was entitled to come to his conclusion as to the credibility of the witnesses as he found.

40.  I do not think there is sufficient basis for me to interfere with the Magistrate’s finding that PW2 did not use the prohibited way of turning the robot by “dancing turn”.

41.  This ground fails.

Ground 2 (an independent risk assessment was needed)

42.  There are two main reasons in this ground. First, the Magistrate wrongly took into account the evidence of PW4. Secondly, the Magistrate erred in ruling that a risk assessment, on ad hoc basis, had to be conducted by an independent person experienced in health and occupational safety.

43.  The first complaint arises from the position of the Prosecution taken by the counsel on fiat at the stage of closing submission. Both Defence Counsel at their closing submissions criticized that the evidence of PW4 had breached various rules for expert evidence to be admissible.  Counsel for D1 and D2, in particular, lodged complaints about the breaches in almost 30 pages in his written submission.  The counsel on fiat then replied that “From my written submission, we’re not relying on the expert…That means it doesn’t come into place, the legal arguments.”  The arguments over the admissibility of PW4’s evidence then rested.

44.  The position taken by the counsel on fiat sounds strange, as PW4 had been called by the Prosecution to give evidence as an expert, who took much time in giving his evidence in this capacity.

45.  Be that as it may, the final position of the Prosecution was clear – PW4 would not be relied upon as an expert.  That being the case, the evidence of PW4, not being an expert, would become inadmissible insofar as his opinions are concerned.

46.  In the Statement of Findings of the Magistrate, he did refer to PW4 as an expert. 

47.  The Magistrate specifically referred to the written submission of counsel for D1 and D2 as taking “half of his some 60-page written submission on this matter” to criticize the evidence of PW4 as “highly problematic” and “inadmissible”.  However the Magistrate did not mention about the final position taken by counsel on fiat that the Prosecution did not rely on PW4 as an expert.

48.  The Magistrate further stated that he did not believe that he needed to delve into the legal rules and legal arguments on the subject of expert evidence and said that “it is a purely academic matter here”.  The Magistrate then quoted the opinion of PW4:

“the opinion of Mr Choi in his report was a simple one:

‘When the demolition robot was in motion, there was a foreseeable risk of overturning of the robot. It might be due to uneven ground condition, jib not retracted close to the body, improper use of attachment and operation of the robot. A safe system of work should be established prior to the operation of the robot.’

In Mr Choi’s opinion, there was always a risk in a moving robot and there would be many causes contributing to its overturning, given the circumstances he had been called upon to deal with in this case.  I find this is a fair and realistic view.”

The Magistrate continued:

“(I) take into account the recommendation of the expert, Mr Choi, but I reach my conclusion independently.”

49.  From the way the Statement of Findings is expressed, it appears to me that the Magistrate did regard PW4 as an expert, contrary to the position of the Prosecution, and considered the inadmissible evidence of the opinion of PW4. On this basis, the complaint of Mr Chau that the Magistrate wrongly adopted the opinion of PW4 has its merits.

50.  Mr Lee, on behalf of the Respondent, argues that the error did not affect the conviction as the Magistrate, while having taken into account PW4’s opinion, reached his conclusion “independently”.  He was entitled to come to his conclusion without the assistance of technical opinion of PW4.

51.  It would seem to me that when the Magistrate expressly said “I take into account the recommendation of the expert”, it is difficult to argue that he was not at all influenced by the opinion of PW4.

52.  It is not disputed that the primary basis of the Magistrate’s conclusion that the system was not safe is the lack of a risk assessment conducted by an independent person experienced in health and occupational safety before the operation started.  The Magistrate found that such risk assessment, on ad hoc basis, was reasonably practicable.

53.  The Magistrate set out the facts and grounds he found to be “germane” to his conclusion as:

(1) The work was to be carried out in a tunnel which must be a very confined place.

(2) Robot was used in it.  It weighed 1,900 kilograms and was powerful and mobile in its operation.

(3) It worked on a construction site which had its fair share of inherent dangers.

(4) Robot doing a job in a tunnel under construction and on a construction site must be an inherently dangerous situation fraught with all kinds of dangers, foreseeable or not.

(5) The operators, three of them, were new to the working place and unfamiliar with the specific location.

(6) They had little authority there, even with an obliging contractor, and they might be too “shy” to ask for anything.

(7) These workers might be considered presumptuous if they carried out a site inspection and asked for improvement of the working environment.

(8) They should not be left to fend for themselves on safety measures, as their attention was on their job which they must complete on assigned time.

(9) Proprietor who had duties in relation to the workers’ safety should not skirt around their duties by placing false confidence on the machinery to be used and the competence of the workers who operated it.

54.  The Magistrate found that the operation was not simple. He said there was a crying need for a risk assessment to be carried out by an independent person experienced in health and occupational safety before the workers were allowed to work on that site. He said such person fitted the description of a registered safety officer.

55.  The main basis of the Magistrate’s finding that there should be an independent risk assessment before the work started is his observation that the tunnel was a confined place and there were inherent dangers for the robot to work there, and the site was new to PW1-3.  The Magistrate did not explain what were the inherent dangers he had in mind.  He once referred to the risk of crashing down of the ceiling of the tunnel because of the vibration the robot generated.  

56.  That might well be the concern of a lay person who has no knowledge of the work in a tunnel.  However there is no such evidence in the case.  Such risk concerning the structural safety of the tunnel was not explored at the trial and indeed not part of the Prosecution case as disclosed at the trial. The basis of the Prosecution concerning the safety of the work system is the foreseeable hazard of overturning of the robot.

57.  Workers’ safety is of paramount importance. Every employer shall make a suitable and sufficient assessment of the risks to the health and safety of his employees.

58.  There are no fixed rules as to how a risk assessment should be carried out. This will depend on the nature of the operation and the type of hazards and risks present.  Depending on the circumstances, it may or may not require specialist skills.

59.  In the present case, PW1-3 did take steps of assessment of risks, although not to the extent required of by PW4.

60.  It might be true that any construction work inside a tunnel can be dangerous.  The question is whether there should be a risk assessment by an independent safety officer or specialist before the operation started.

61.  It is the Defence case that the accident happened during the most basic operation of the robot.

62.  It is not disputed that it was the first time PW1-3 worked on the site. Apart from that, however, I cannot find clear evidence that the robot being deployed to do the trimming work in a tunnel was an unusual and complicated job for PW1-3.

63.  In my judgment, there is always a possibility that a moving excavator might turn over during its operation.  The question is how foreseeable or remote is the risk and what reasonably practicable steps should be taken to prevent the risk.

64.  A court’s task is to have regard to the need to balance the likelihood of risk against the cost, time and trouble necessary to avert the risk.  In so doing, regard would be had to what was known at the relevant time: HKSAR v Gammon Construction Ltd (2015) 18 HKCFAR 110.

65.  While the Prosecution does not need to establish a causal relationship between the alleged breach and the injury, the circumstances of the accident are relevant to the question as to whether there was a breach of s.6A obligation.

66.  The Court of Appeal in Gammon case said: “what happened, why it happened, and what could and should have been done to prevent it are likely to be the principal matters that occupy the court.”

67.  In the present case, the possibility of cause of the accident by the adoption of improper way of operation (the “dancing turn”) was excluded by the Magistrate.  It is a finding of fact that I should not interfere with.

68.  Yet, none of the witnesses could tell why the robot would suddenly turn over.  There is no evidence that the ground condition contributed to the toppling of the robot.  While PW2 said in court for the first time that there were pebbles on the ground, the Magistrate found that it was “inconsequential”. The Magistrate must be right as the robot  moved on crawler tracks and it was not the Prosecution case that the pebbles or the ground condition caused the overturning of the robot.

69.  The facts remain that even after their investigation, the Labour Department could not find out the reason why the robot toppled. In the circumstances, was the risk of toppling of the robot a reasonably foreseeable one to justify an independent risk assessment by a safety specialist?

70.  No doubt a tunnel is a confined place.  A tunnel under construction is expected to have an uneven ground with pebbles. However, the robot was designed for the purpose of demolition and it moved on crawler tracks. There is insufficient evidence to suggest that tunnel environment would create an obvious risk for the robot in question.

71.  A relevant factor to consider whether an independent risk assessment should be conducted before the operation is whether the operation in question in the tunnel one of complicated or unusual character. I do not see such evidence in the case.  There is also no evidence in the case to suggest that the capability of the robot cannot meet the usual circumstances of a tunnel under construction.

72.  PW1-3 were qualified and experienced workers.  They had all received a comprehensive training from the manufacturer of the robot. The were all taught the dangers in the operation of the robot and where they should stand during the operation.  PW3 did carry out risk assessment, although not to the extent required of in the opinion of PW4, and considered that the site condition was suitable for the operation.

73.  PW2 was a very experienced operator of the robot.  He must have known where he should stand when he operated the robot. There is no evidence that the operation in question was complicated or unusual to him.  Indeed the Magistrate seems to have found that PW1-3 “just carried out familiar working procedure” (see Appeal Bundle 155L).

74.  A magistracy appeal is heard by way of re-hearing. I am required to be satisfied that on the admissible evidence of the case, the guilt of the Appellant has been proved.

75.  It is unclear to what extent the Magistrate had been influenced by the inadmissible opinion of PW4 before he came to his conclusion.

76.  In the absence of expert evidence to explain the risks of the operation in question and the lack of evidence that the operation was of complicated or unusual character, I am unable to come to the conclusion that, to satisfy the Appellant’s obligation under s.6A(1), an independent risk assessment by a safety specialist had to be conducted before the operation. On the evidence which can be considered by the court, I am not satisfied that the Prosecution has proved its case beyond reasonable doubt.

77.  In the result, the appeal against conviction is allowed.

Appeal against No-Costs Order

78.  In his Statement of Findings, the Magistrate said:       

“…On matters referred to under paragraph (c)[ s6A(2)(c)], I will also leave them out for two reasons. First, these matters, in this case, could be part and parcel of the safe system of work which had been dealt with in the same way as in paragraph (a). Secondly, it is my view that paragraph (c) does not apply to situation where workers just carried out familiar working procedure…They did not meaningfully relate to the main theme of this case as I found it earlier, namely risk assessment.”

79.  He further said:

“It is my view … the proprietor should have one duty to ensure health and safety of the workers but there could be many matters in that duty and very often paragraphs (a) and (c) were such matters. This means the proprietor should face only one charge and paragraphs (a) and (c) should be relegated to the particulars of the offence.” (emphasis added)

80.  In his Reasons for No-costs Order, the Magistrate gave the reasons why he refused to award costs on acquittal of Summons F.  He said:

“There was one accident and I found in relation to it that there was a failure of duty to ensure the health and safety of workers. I convicted on the basis of lack of risk assessment. The 3 defendants were never short-changed on the acquittals of the other charges based on paragraph (c).” (emphasis added)

81.  The reasons why the Magistrate refused to give costs on the acquitted summons are not very clear. It appears that the Magistrate refused to award costs on the acquittal of Summons F relating to s.6A(2)(c) because he held the view that Summons F was unnecessary as the allegation in that summons was part and parcel of the allegation in Summons E under s.6A(2)(a). The Appellant should face only one charge.  The Appellant was not “short-changed” as it did not incur extra legal costs for Summons F.

82.  The Appellant perceived the reasoning of the Magistrate as overlapping of the costs for preparation for the 2 summonses. He submits that it is a matter for the taxing master. 

83.  The Respondent contends that the Magistrate found there was no supervision in the operation and therefore the acquittal was technical. The Magistrate was entitled to refuse to award costs.

84.  In Tong Cun Lin v HKSAR, (1999) 2 HKCFAR 531, the Court of Final Appeal held that a defendant who is acquitted at the trial should normally be compensated out of the public revenue for the costs incurred in defending himself, unless there are positive reasons for not doing so.

85.  In the present case, the Appellant was charged with two separate summonses.  The first summons alleged the breach of the general duty of proprietor under s.6A(1) to ensure, so far as reasonably practicable, the health and safety of the proprietor’s employee at work by its failure to provide a safe system of work as required under s.6A(2)(a).  The second summons, which was dismissed, alleged the breach of the general duty by failing to provide “information, instruction, training and supervision” under s.6A(2)(c).

86.  While there is a general statutory duty on a proprietor to ensure the safety of his employee at work under s.6A(1), the sub-sections of s.6A(2) created specific statutory duties according to the terms of each sub-section. Accordingly each separate allegation under s.6A(2) would normally be the subject of separate summonses and particularised accordingly (see Hong Kong Archbold 2017 ed, para 44-17 and HKSAR v Chan San Fa, HCMA 95/1998).

87.  The Appellant, facing two different summonses, has the right to defend both summonses. Had it not been charged with the second summons, the defence would have been focused only on the first summons.  Even if the second summons, as the Magistrate believed, was part and partial of the safe system of work, I do not think that it should be a good reason to deprive the Appellant entirely of the costs for the preparation of defence in the second summons. There must have been some extra costs incurred for the preparation of the defence in the second summons.  It would be a matter for taxation.

88.  The Respondent argues that the acquittal was technical as the Magistrate found there was no supervision in the operation. In HKSAR v Tsang Wai Ping (2005) 8 HKCFARD825, Bokhary PJ expressed caution about depriving an acquitted defendant of costs on this ground (see Hong Kong Archbold 2017 ed para 6-12). More importantly the Magistrate, as I read his reasons for refusal of costs, did not say that he refused costs on this basis.

89.  In any case, as a result of my decision to allow the appeal against the conviction of the first summons, I do not think that it is just to refuse costs on the acquitted summons.  I would therefore also allow the appeal against the no-costs order of the Magistrate. The Appellant will have costs on Summons F for the trial, to be taxed if not agreed.