R. v. SOGEA/CAMPENON BERNARD SGE/FRANKI JOINT VENTURE

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 890 OF 1995

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J U D G M E N T

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1. This was an appeal against conviction. The appellant company having been convicted of two offences against the Factories and Industrial Undertakings (Lifting Appliances and Lifting Gear) Regulations, made under the Factories and Industrial Undertakings Ordinance, Cap.59. The charges were that the appellant company was the owner of a crane and had not had it periodically inspected in accordance with the Regulations.

2. The machine in question was in fact an excavator which had a hook attached to its bucket. The appellant company employees were seen to use the hook on the excavator to lift and transport a machine.

3. The definition of crane contained in Regulation 3 is as follows :

"... any appliance equipped with mechanical means of raising and lowering a load and for transporting the load while suspended; and also all chains, ropes, swivels, or other tackle (down to and including the hook), used in the operation of a crane; but does not include -

(a) .....

(b) .....

(c) an earth or mineral moving or excavating appliance not fitted with a grab;"

These regulations are there to ensure that lifting appliances such as cranes are kept and maintained in safe working order and that their use does not constitute any risk to those persons who operate them, or are in the vicinity of their operation. It is of course known that an excavator, such as the one in question, is equipped with "mechanical means of raising and lowering a load and for transporting the load whilst suspended". However, by excluding the excavator from the definition of crane, the legislature was obviously intending to distinguish between the two machines for the purposes of this legislation.

4. In his Findings the learned Magistrate said this :

" I have examined the regulations with great care. I agree that the use of the appliance at the material time does fall clearly within the primary definition. The exclusion clause is unqualified in the sense that it does not refer to 'an excavating appliance so long as it is being used as an excavating appliance'. In my judgment the real question to be determined is whether an appliance designed as an excavator is an excavator for the purposes of these regulations when it is not being used as such and when it is being used for some other purpose. If this appliance could not properly be described as an excavator at the material time then the exemption does not apply."

I do not agree. It may well be of course that the use of the excavator for the purposes of lifting in the manner described in the evidence constitutes an offence, the failure, for example, to provide and maintain plant and systems of work that are safe, but that does not make the excavator a crane. The excavator remains an excavator and, as such, is excluded from the definition of crane in the regulations. Its mis-use, if such it be, must be governed by other legislation. If there is none, then there is a lacuna in the law.

5. During the evidence of the Factory Inspector he conceded that excavators were commonly used in the offending manner. If that be the case, and if it is perceived to be a dangerous operation, and a wrongful use of equipment, then the Labour Department should be seeking to introduce further and more specific legislation to exclude the use of excavators for this purpose, and not asking the Court to stretch the interpretation of existing legislation beyond what is reasonable and acceptable.

6. I allowed the appeal.