R. v. AOKI CORPORATION/FRANKI CONTRACTORS LTD/TOBISHIMA CORPORATION JOINT VENTURE

1996, No. MA 1345

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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J U D G M E N T

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1. This is an appeal from Miss Maggie Poon, magistrate at Tuen Mun. I would like to say at the outset that I am grateful for the clear way in which she has set out her findings.

2. A number of points were raised in this case, but the only real issue is whether or not, on the evidence, Regulation 38Q was satisfied. Under Regulation 38B of the Construction Sites (Safety) Regulations, Cap.59, scaffolding, etc., has to be provided when people are working above ground level. The employer should provide and keep in position scaffold or other forms of ladders. This was work that was being carried out on the temporary structure which was supporting a concrete underpass. The contractor was the well-known contractor called Aoki and the factory inspector noticed that people were working with safety belts on but the workers were standing on a metal falsework which was used to support the utility service road and they were doing work on it.

3. The contractor relied upon Regulation 38Q which says :

"(1) Where by reason of the special nature or circumstances ........ of the work ..... it is impracticable to comply with ..... regulations 38A, 38B ...., the contractor responsible for a construction site shall erect and keep in such positions as to be effective to protect person carrying on that part of the work or using the said access or egress suitable safety nets or safety belts ......

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(2) Where the use of a safety belt is required ....... provide each workman employed on the site with a suitable safety belt."

They provided a number of safety belts and they thought that was sufficient.

4. The problem really here is that the common practice, as I am told and I would accept, is that the factory inspector gives the evidence of fact, that is what he saw or heard, and sometimes generally another factory inspector, or someone more senior, may be called to give their opinion as to what should or should not be done, or what could or could not be done.

5. Here the safety officer admitted that he had no personal experience with falsework but he had been a registered safety officer for 4 1/2 years. The magistrate said : "I had no doubt of his expertise in matters relating to safety." That may be so, but the issue here was whether or not putting layers of wooden planks as working platforms when workers are climbing up and down in building the falsework is really a practicable solution. The magistrate said it may be more inconvenient to do that, but then she said that one really has to balance such against the possible risk of danger.

6. The issue really was whether or not it is impracticable. I am not quite sure on whom the burden is here. It seems to me that where the contractor raises Regulation 38Q, it is for him to show, on the balance probabilities, that it is impracticable. The appellant called evidence from a very experienced safety manager, Mr Bolger, who gave very detailed evidence as to the reasons why it was not practicable. The magistrate did not appear to have evaluated that as a direct conflict of opinion. She did not appear to have evaluated the defence evidence as against the prosecution evidence. What she said was : "I was satisfied that such measures as suggested by PW1 were not impracticable."

7. I am again not quite sure whether that is the test. One has to look at the special circumstances of the particular work. Although, as I said, I think the magistrate's approach was very sensible and straightforward, I have looked at all the pictures concerning these frameworks. I do have a doubt in this case. I think all the defence have to prove is on the balance of probabilities which has been established. On that basis, I would therefore allow the appeal.