THE QUEEN v. SO KWOK YAU

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HEADNOTE

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                Dangerous machinery - duty to provide an effective guard-Factories and Industrial Undertakings (Guarding and Operation of Machinery) Regulations Cap. 59 (Reg. 5) guard must be fitted and adjusted so that even if worker does not adopt ideal method of operation the guard will still prevent injury. Dicta of Stable J. in Carr v Mercantile Produce Co. Ltd. followed.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 260 OF 1986

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BETWEEN

Down of Judgment: 28th July 1986

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JUDGMENT

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1. This is an appeal against a conviction on a charge for failing to effectively guard a piece of dangerous machinery contrary to the provisions of Regulation (5) of the Factories and Industrial Undertakings (Guarding and Operation of Machinery) Regulations, Cap. 59.

2. There was an agreed statement of facts and, in addition to that, evidence for the prosecution was given by Mr. Lau Wan Fu, an employee of the defendant who had been injured and Mr. Lau Wan Lai, a senior factory inspector. The defendant gave evidence on his own behalf. The evidence agreed and admitted under S.65(C) of the Criminal Procedure Ordinance was as follows :-

1.	The defendant was the proprietor of an industrial undertaking under the name of Kwok Yau Metal Manufactory, at Kwai Chung.
2.	On the 30th of October 1984, an accident occurred at the said factory causing serious injury to Mr. Lau Wan Fu.
3. (i)	Investigation made by a factory inspector of the Labour Department showed that at the time of the accident, Lau Wan Fu was operating a power press for shaping metal handle components. Each components was about 4" x 2".
(ii)	Fart of the power press was a dangerous part a reciprocating press tool and die. The die was fitted onto a bolster which was 15" long. The size of the die was similar to the size of the workplace i.e. about 4" x 2''.
(iii)	There was a double-arm sweep-away guard for the tool and die. When the arms were at rest, they would overlap each other is the middle position in front of the tool and die. The tips of the arms were in a position loner than the surface of the die.  When the fool descended, the arms would sweep outwards.
(iv)	The operation of the power press simply involved:

(a)	inserting the workpiece by the right hand;
(b)	stepping on a pedal to actuate the downcoming of the tool; and
(c)	removing the workpiece with the left hand.

3. A sketch of the defendant's factory showing that the location of the power press and photographs of a poorer press in the defendant's factory were produced, as was a sketch showing how the sweeping arms of the power press can be adjusted.

The evidence

4. Evidence was given that when Mr. Lau was operating the press, he fed material into it with his right hand and removed the products with his left. In order to do so, he said he "bent his hand slightly" but I think this must be taken as meaning that he bent his arms. He said that when he actuated the pedal, the tool would come down. The particular occasion on the 30th of October when he tried to remove the article, the tool came down and he could not remove his hand in time. He said that the photographs produced showed the power press he was operating.

5. He said that the sweeping arms were working on the morning in, question but he did not feel it brush against his arm. He did, however, say that the arms extended beyond the working table by about 2". He said that even if the arms were in the fully opened position, his hand could still reach the tool and die if he put his hand straight into it. He said when he put his hand into the tool and die, the sweeping arms would not brush away his hand. He agreed that the proper procedure for feeding the machine was to put the components straight into it so that the sweeping arms would remove his hands before the die descended. But he said it was more convenient to do so with his arms bent. However, in that case the sweeping arms would not push his hands away.

6. Mr. Lau Wan Lai, a factory inspector, gave evidence. It could have been more helpful. He said he visited the factory on the 19th of December, 1984 which was almost 7 weeks after the accident. He came on the 7th of June 1985, over 6 months later, for the purpose of taking photographs. He said that the machine was fitted with the double-arm sweeping guard and that the defendant should show him how it worked when the foot pedal was depressed. He said that the sweeping arms sweeped from the middle of the bolster to reach almost the side. This is contrary to the evidence of the worker who said that the arms extended beyond the side of the bolster. He said there were 3 conditions for the guards to be effective: -

                1.    The arms must be below the bolster;

                2.    It must have no gap at rest;

                3.    The sweeping arms must sweep beyond the edge of the bolster.

He said that how wide would depend on the size of the die and also the hand position likely to be adapted by the operator as the nature of the work required.

7. Mr. Lau agreed that the safety device was invented by the Labour Department and approved by them. He was asked if the sweeping arms swept 2", beyond the bolster, would that be sufficient and his answer to that was that it depended on the size of the tool and die. And I am entirely unable to understand that reply because it seems to me that the size of the tool and die was of no importance whatever. What was clearly important was that the arms be so adjusted as to sweep sufficiently aside that the worker's hand could not remain near the die when it descended.

8. The defendant Mr. So Kwok Yau gave evidence and said that he had 7 of these machines which he had been using for over 10 years. There had been one previous accident about 4 years ago of a similar nature. He said the proper procedure for the worker was to put his hand straight into the machine and the arms would then sweep away his hand when the tool descended. He said that the safety device was invented by the Labour Department and they recommended a contractor to install them. He followed that recommendation. He said that when a worker bends his arms, an accident "Will" occur. I take that to mean could occur. He said he personally checked the machines every day and if it was not working properly, he would "reprimand the worker". I do not follow what he means by that but I assume he means that he would caution the worker. He said that prior to the accident, he had inspected the machines and they were functioning properly. He knew how to adjust the width of the sweeping arms depending on the size of the die and had been told by the Labour. Inspector that as long as the arm swept beyond the bolster, that was sufficient. He said his workers were on a salary and not on bonus.

Finding

9. The magistrate found that while it may be safer to put his hand straight into the tool and die from the front of the machine to feed is material and to remove finished products, the method used by the worker with his arms bent was not an improper manner of operation and that the machine must be equipped so as to effectively prevent an accident even if that method of operation was used. He said that it must be within the contemplation of the legislation that in operating a machine, a worker may sometimes be inattentive or negligent and not doing his work in the best and most proper manner. In saying that, he is reflecting the dicta of Stable, J. in Car v. Mercantile Produce Co. Ltd. (1949) 2 K. B. 601 when he said, at 608 : -

"The factory Acts are there not merely to protect the careful, the vigilant and the conscientious workman but human nature being what it is, the careless, the indolent, the inadvertent, the weary and even perhaps in some cases the disobedient."

The magistrate held that before the defendant could discharge his obligation under the Regulations, the sweeping arms must be such that even if a worker was to put his hand into the machine from the side, the arms would brush his hands away before the fall of the tool onto the die. He said that the evidence was such that that did not happen.

10. I have some sympathy with the defendant in this case because quite clearly, he had equipped the machine with a guard which was approved by the Labour Department, and indeed invented by them. However if the guards are properly adjusted so that they sweep sufficiently apart, they would prevent an accident such as the one that happened. I am satisfied that the word 'effective' in the Regulations means that the machine must be guarded so as to prevent an accident such as this, even if the worker does not adopt the proper method of working, that is, by putting the material straight into the machine. Human nature being what it is, inevitably there is a risk that a worker will feed the machine and extract the products from the side. I am therefore satisfied that the magistrate was right in holding that the guard on the day in question was not effective as provided for in the Regulations.

11. The appeal against the conviction must therefore be dismissed.